Chapter Five – Integrating Shari‘a: Legal Politics In Somaliland – from Part II – Struggles of a Broken Nation, 1991–2021 in Shari‘a, Inshallah: Finding God in Somali Legal Politics
This chapter investigates the endurance of shari‘a in Somaliland. Somaliland declared independence in May 1991, as Somalia was disintegrating, by reasserting the sovereignty it had for five days (June 26–30) in 1960, prior to unifying with the former Italian Somalia. Between 1991 and 2021, the self-declared state of Somaliland made strides to build peace and promote principles associated with the rule of law. Following a series of elders’ summits, Somaliland outlawed Siyad Barre’s national security courts, held contested elections, developed a government of limited powers alongside a new currency and economic development programs, and adopted a constitution rooted in Islamic and international human rights principles.
Author
Mark Fathi Massoud
Type
Chapter
Information
Shari‘a, Inshallah: Finding God in Somali Legal Politics
, pp. 208 – 254
DOI: https://doi.org/10.1017/9781108965989.007
Publisher: Cambridge University Press
Print publication year: 2021
BOOK CHAPTER
CHAPTER FIVE – Integrating Shari‘a: Legal Politics In Somaliland
from Part II – Struggles of a Broken Nation, 1991–2021
Published online by Cambridge University Press: 13 May 2021
By Mark Fathi Massoud
Mark 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
What solves [conflict among] the people is the law … If there is not strong law, there will be no peace.
Interview 50 with Caziz, lawyer, in Hargeisa, Somaliland (July 2013)
This chapter investigates the endurance of shari‘a in Somaliland. Somaliland declared independence in May 1991, as Somalia was disintegrating, by reasserting the sovereignty it had for five days (June 26–30) in 1960, prior to unifying with the former Italian Somalia. Between 1991 and 2021, the self-declared state of Somaliland made strides to build peace and promote principles associated with the rule of law. Following a series of elders’ summits, Somaliland outlawed Siyad Barre’s national security courts, held contested elections, developed a government of limited powers alongside a new currency and economic development programs, and adopted a constitution rooted in Islamic and international human rights principles. The constitution’s architects explained to me their belief that embedding shari‘a into the legal system would keep al-Shabaab extremists at bay, which southern Somalia was unable to do, while promoting human rights would draw international support. But the strategic intentions behind Somaliland’s Islamic legal arrangements have been largely invisible to aid agencies, which remain focused on constructing courthouses and training judges and lawyers to apply nonIslamic law. These aid efforts are predicated on a view of shari‘a that connects religious faith to violent extremism – an oversimplified understanding of Islam that undermines the Islamic foundation of Somaliland’s stability.
The self-declared nation of Somaliland has provided the Horn of Africa’s strongest evidence of progress toward the ideal of the rule of law, despite not being recognized as an independent nation by the United Nations or any country in the world. Practically speaking, Somaliland has been autonomous since 1991, but legally speaking – to Somalia and much of the rest of the world – Somaliland is still part of Somalia.
Somaliland’s shari‘a-based experiment has lasted much longer than the brief heyday of the Islamic Courts Union in Somalia in the mid2000s. Somaliland’s relative stability shows that legal pluralism is, in itself, not necessarily destabilizing. In fact, shari‘a may be the glue that holds Somaliland’s plural system together. Somaliland’s co-existing legal institutions invoke and use shari‘a in four primary ways:
- Shari‘a and state institutions. Judges in Somaliland’s district courts (formerly qadi courts under the British Somaliland Protectorate) use shari‘a to resolve family disputes.
- Shari‘a and customary norms. Aqils and sultans use xeer (Somali custom), which has long been shaped by shari‘a and derives legitimacy from it, to resolve disputes between members of different clans outside the state courts, in a system that functions somewhat like a form of collective insurance.
- Shari‘a and sheikhs. In a system that has developed since 1991, individual sheikhs run private offices (macduum) where they use shari‘a to resolve people’s disputes in an ad hoc process that resembles arbitration. The first section of this chapter discusses this system.
- Shari‘a and the constitution. In declaring Somaliland’s independence and developing its constitution, Somaliland’s state-builders made shari‘a their foundational principle. The second section of the chapter recounts this process.
This chapter is based primarily on research I conducted in Somaliland. In addition to fieldwork in legal aid offices, I conducted interviews with Somali lawyers, judges, government officials, scholars, religious leaders, elders (including aqils and sultans), and activists, as well as international lawyers and aid workers. Due to the fragmentary nature of archival and secondary sources on the legal systems in place in Somaliland since 1991, there are few scholarly sources on which to draw. The data I gathered, however, tell the story of law in Somaliland’s first thirty years from the perspectives of those who shaped and experienced it.
When Somalis I met discussed Somaliland’s legal system, they would often tell me about three systems. When I asked them to name those systems, they were relatively clear about shari‘a and xeer, but they offered no fewer than thirty words and phrases to describe the state’s legal system, including “courts,” “formal law,” “secular law,” “modern law,” “socialist law,” “colonial law,” “and international law” (cf. Table 1.2). While these different terms may suggest very different legal orders, to many Somalis, they are all the “other” to the core of Islam in people’s lives. When I asked an activist I met in 2019 to tell me who is the most politically powerful person or group of people in Somaliland, she did not name government officials, courts, or the police. “The sheikhs,” she responded. People see sheikhs, and sheikhs see themselves, as the guardians of shari‘a.
Why create an Islamic state? In Somaliland, shari‘a was the response to a history of dictatorship, a sincerity of belief, and a strategy of hope. First, introducing Islam into the peacebuilding process in Somaliland in 1991 was a way to limit the arbitrary exercise of power. Elders promoted an Islamic rule of law in their declarations of peace before they turned to Western models of constitution writing. Second, Islam was the most promising path to earning the trust of diverse Somalis in Somaliland’s national experiment, because shari‘a had already been a central feature of, and largely blended into, Somali customs and traditions (xeer) for centuries after Islam’s arrival in Africa. Third, forming an Islamic state was a deliberate strategy to stave off the imminent threat of radical jihadism because, as Somaliland’s constitutional architects told me, jihadists in southern Somalia would find little to fight for if they moved north into Somaliland since Somaliland would already be an Islamic state. An Islamic state provided the foundation that people in Somaliland, despite their political differences, could agree upon.
Western legal scholars and policy analysts presume that governments that use shari‘a see it as an expedient tool to control and pacify the population, a muscle that the state flexes to exert unfettered theocratic authority. But the case of Somaliland shows how shari‘a laid a foundation for a state of limited authority. Claiming to rule in accordance with God’s will can give political leaders authority. But when coupled with democratic intentions, it can also provide a check on state authority. As a civic leader told me in Hargeisa, Somaliland’s capital city, “People [here] see a different way of being an Islamic state.”[1] This “different way” promotes the rule of law in the name of Islam, preventing potential dictators from using Islam for their own ends. This chapter uses the case of the first thirty years of Somaliland’s self-declared nationhood (1991–2021) to investigate the ways elites constructed an Islamic rule of law. The chapter also lays contextual groundwork for Chapter 6, where I analyze how contemporary activists in Somaliland invoke shari’a for women’s rights and gender equality.
While attending at a two-day workshop on restorative justice in Hargeisa during my fieldwork in 2013, I witnessed how aid agencies and the Somalis they supported understood shari‘a differently. More than thirty sheikhs and aqils who serve as dispute resolvers in their communities traveled from around Somaliland to attend, converging upon a conference hall in the center of town. The United Nations Development Programme (UNDP) and a local nongovernmental organization (NGO) sponsored the workshop, in coordination with the Somaliland Ministry of Justice. The UNDP hired a European Muslim consultant to facilitate the workshop, flying him to Hargeisa for a few days. His remarks focused on getting the participants’ support for a UNDP proposal to construct a network of offices across Somaliland where Somalis could seek advice or resolve their disputes. These would be staffed by “paralegals” who are lawyers and nonlawyers informally mediating people’s disputes. But aqils and sheikhs I had met across Somaliland had told me about their already existing dispute resolution efforts. These religious and community leaders relied on local traditions and practices whose bedrock was what they called shari‘a.
During a break on the second day of the workshop, I told the consultant that I was surprised that the word “shari’a” had yet not yet come up. The consultant told me that he knew of shari‘a’s importance both to the attendees and to Somaliland’s founding. But, shrugging his shoulders, he said that his UNDP colleagues were “mad” at him “for raising shari‘a” before he left Europe to conduct the workshop. “They’re scared of it,” he reflected. They “didn’t want me to use [shari‘a], especially Americans. I said, ‘I’m just the messenger … Islam arrived … in Somaliland long before I did. I didn’t make them Muslims!’”
The irony of the workshop was not lost on the consultant: the United Nations had hired him as a Muslim lawyer to convince Muslim religious and community leaders in a Muslim-majority society that “restorative justice” should involve supporting foreign-implemented, non-Muslim dispute resolution frameworks at the expense of pre-existing Islamic efforts. As his superiors had instructed him, he made no mention of shari‘a. At the end of the two-day workshop, as the aqils and sheikhs were filing out of the conference hall and walking toward the local mosque for maghreb (sunset) prayer, the consultant asked them to “pray to Allah that this [UNDP project] is successful.”
Much like colonial, democratic, and authoritarian administrations in Somalia before 1991, state and humanitarian agencies in Somaliland after 1991 promoted an understanding of law that tried to erase versions of shari’a that were unacceptable to them. The workshop I attended took place as Somaliland’s Ministry of Justice was drafting a law to formalize private dispute resolution offices, called macduum, led by prominent sheikhs. Licensing and regulating these offices would underscore the state’s Islamic identity and, thus, increase public support for the state while absorbing competing non-state authorities. But Somalis typically traveled to these sheikhs’ offices to resolve their civil disputes with one another because of their deep trust in Islam and their deep mistrust of state courts and foreign aid agencies. Even the consultant was caught between those in the United Nations who were paying his consultancy fees and those in Somaliland who were attending his workshop. As a European, he was foreign to the sheikhs and aqils. But he was just as foreign, as a Muslim, to his UN supervisors who urged him to leave religious dispute resolution frameworks at the door to the conference hall.
Somaliland’s legal arrangements were designed to construct an Islamic state in the wake of the toppled Siyad Barre regime. Western powers and aid agencies were largely absent from the creation of Somaliland’s Islamic state in the 1990s. But during the 2000s and the 2010s, foreign NGOs and UN agencies slowly began to enter as they saw the territory becoming a haven of regional stability and progress. They opened walled compounds and offices in Hargeisa and began funding local Somali NGOs and community-based groups that carried the banners of human rights, health, girls’ and women’s education, and community development. Consultants began working with the Somaliland government to write new laws and encourage investment. But foreigners also had to strike a delicate balance between supporting Somaliland’s nascent democracy and financing a breakaway Islamic state that neither the world’s countries nor the United Nations dared to recognize. Thus aid from UN agencies and international NGOs has not focused on large public infrastructure projects. Rather, these aid dollars have been put to use on lower-cost “soft” interventions, like community development, legal reform, legal education, and legal aid.
Western aid groups and UN agencies do not wish to promote shari‘a. Their concern about shari‘a comes partly from a long-perceived civilizational divide between Western and Muslim-majority countries and a fear that Islamic states might harbor terrorist organizations or engage in social oppression contrary to human rights. The fear of shari‘a comes not only from seeing it as a top-down legal imposition upon a populace. It also comes from shari‘a’s bottom-up characteristics and ethics, which make shari‘a difficult for state authorities to control and give aid groups a collective impression that shari‘a runs counter to the rule of law. In promoting Western, secular forms of political development, aid groups seem to demand that shari‘a be excised from or at least controlled by the state, just as the British sought to do in their Somaliland Protectorate. To those in Somaliland, however, this approach makes it seem like aid groups and even the United Nations are dismantling not only the precious stability Somaliland created but also Islam itself.
The contemporary attempts to contain Islam in Somaliland occur via three interrelated activities associated with promoting the rule of law: legal education (building law schools), legal aid (designing programs to help the poor access state courts), and legal reform (writing new laws or revising old ones). These three activities are the primary means by which aid agencies interact with Somaliland’s government and people. They are also the three spheres in which aid agencies advance state law and restrain shari‘a by subsuming it into state legal institutions or erasing it from public view entirely.
As the previous chapters have shown, building a single, centralizing legal order is essential to building a state, including an Islamic state. Somaliland is no exception. The legal efforts of foreign aid agencies compete with those of Somali sheikhs and aqils, who are also resolving people’s disputes to foster social stability. Somaliland has become a competitive legal marketplace in which discursive contests over the sources and meaning of law have overcome the processes and rules that people already use to resolve disputes. People bring their layered colonial, international, transnational, communal, and Islamic institutions and discourses into the legal arena, along with their political alignments and beliefs about how the state ought to function and who or what state law serves.
Somaliland’s years of stability offer an important case for studying shari‘a’s potential to build peace and the rule of law. Somaliland also illustrates the relationship between Islamic and international law in practice. Somaliland’s claim to sovereignty, largely unrecognized by the outside world, allows Somaliland to traverse boundaries between Islamic and international law more openly than other Muslim-majority countries. Somaliland is freer from many of the constraints of large-scale donor aid, since donors do not recognize its sovereignty and thus shy away from interfering with its government decisions. During my conversations with lawyers, officials, and activists in Somaliland, I encountered a deep conviction and hope that the world’s nations would one day recognize Somaliland as a sovereign state. Without the burdens of state recognition, however, they were making decisions about law, politics, and shari‘a relatively free from international scrutiny.
Like other states with democratic roots, Somaliland is far from perfect. Its problems seem only to have increased since I first visited in 2013: presidents have extended their terms, parliamentary elections have been delayed or canceled, and journalists have been prosecuted under spurious anti-terror legislation. Somaliland’s politicians seem to think they should have more power than they do, which weakens people’s faith in democracy. But Somaliland’s politics have remained overwhelmingly nonviolent, even among those who disagree vocally with the actions of individual authorities. Somaliland’s political progress, especially when compared to Somalia’s, may come more from a commitment to peace and stability than from a commitment to democracy.
This chapter shows, first, how Somaliland’s citizens and state-builders have used shari‘a as a catalyst for hopeful change since the 1991 collapse of Somalia. Shari‘a matters in everyday life as people go to sheikhs’ offices to resolve their disputes. But shari‘a also has a rich history in Somaliland’s founding. The major peacebuilding efforts of the 1990s prioritized shari‘a, culminating in Somaliland’s 2001 constitution, which proclaimed shari‘a the source of Somaliland’s laws. Next, the chapter shows how aid agencies, Somaliland’s government officials, and civil society groups experience the tensions between Islamic and international law. Efforts to teach new law students, construct new legal aid centers, and write new laws are attempts – not unlike those of colonial and authoritarian administrations before them – to centralize law, co-opt religious power for the state, and strengthen the state’s authority while limiting nonstate forms of authority.
BUILDING AN ISLAMIC SOCIETY
Somaliland was built on shari‘a. Serving God’s will was central to the Somali National Movement’s resistance to Siyad Barre’s regime during the 1980s and its construction of a new state during the 1990s and 2000s. While the second section of this chapter will tell that story, this one tells a parallel story of ordinary people in Somaliland who, by turning to Islamic rules, procedures, and personnel to resolve their disputes, have founded a society on Islamic forms of peacebuilding.
During my fieldwork I learned that many people took this bottom-up approach to shari‘a. By turning to shari‘a – specifically, to ad hoc tribunals led by sheikhs – people could resolve their disputes quickly and simply. Clan elders and aqils continue to resolve many everyday disputes over identity, theft, and injury, as they have for centuries, and state courts are now available as well. But people told me they trusted the sheikhs for other matters because sheikhs promise to adhere to God’s will in rendering judgment. This trust made the litigants bind themselves to a sheikh’s decisions before they even entered his office.
Somalis I met in Hargeisa said that they visit the sheikh for many of their problems. When the sheikhs work as dispute resolvers and not in other areas (e.g., validating marital contracts), the sheikhs are called macduum al-shari‘, or simply macduum (roughly translated as “sheikh’s tribunal”). These ad hoc religious courts use shari‘a principles. As private dispute resolution offices run by individual sheikhs, they do not function as state-authorized tribunals. But the state has not attempted to shut them down; they provide needed stability within families and between communities. While I was could not observe sheikhs resolving disputes because of their private nature, I met sheikhs who worked as macduum and spoke with Somalis who took their disputes to macduum. Their comments revealed the important role of sheikhs and shari‘a in maintaining social stability.
A sheikh accepts a dispute only when he knows that the disputing parties consented to bring their dispute to his office. They typically consent because of the importance of knowing a decision was made in the name of Islam. As in an arbitration tribunal, the parties also must agree to pay the sheikh’s fee and to be bound by his decision before he makes it. The conflict must not be so severe that the parties are not speaking to one another, as they need to come together to invite the sheikh to arbitrate. The diverse kinds of disputes that reach sheikhs’ offices include disagreements related to divorce, inheritance, and succession; property or financial disputes; theft; and tort claims related to bodily harm, including payments of diyya (roughly translated as blood money) after the wrongful death of a family member. These are not major disputes between political parties, but some of the disputes could turn violent if left unresolved.
The most renowned sheikhs are experts in Islamic law. They have memorized many of the primary sources of shari‘a – the more than 6,000 verses of the Qur’an, thousands of pages of the Hadith (records of the teachings, actions, and tacit approvals of the Prophet Muhammad), along with the rules of jurisprudence (usul al-fiqh) related to using analogy (qiyas) and scholarly consensus (ijma). The parties presume that the sheikh decides their fates according to these sources of shari‘a, which the sheikh has studied and preached in public. Some Somalis call this Islamic dispute resolution process “al-kitaab” (“the book”) because, in the words of one civil society activist, the sheikh “judges by the Qur’an.”[2]
There is generally no way to appeal a sheikh’s decision. Parties are free to initiate a separate case in state court if they are unhappy. State courts, however, cannot automatically enforce a sheikh’s judgment. Rarely, sheikhs and litigants told me, does a party ignore a sheikh’s decision. First, the parties agree in advance to accept it. Second, ignoring a judgment rendered according to God’s will is akin to going against religion itself, frowned upon in a pious society. Third, a sheikh’s legitimacy comes, not from the state, but from his familiarity with shari‘a and his connection to tradition – an asset in a place where state courts are compromised by their colonial foundation and authoritarian legacy.
Somaliland’s macduum echo Islam’s long history of religiously informed dispute resolution, without the need for time-consuming state court procedures or costly lawyers. It began with the Prophet Muhammad, to whom people in Mecca and Medina turned for arbitration as he was receiving revelations that would be compiled in the Qur’an. Prominent sheikhs since that time have offered their dispute resolution services to local communities. Among the most famous in the Horn of Africa was Sheikh Mohamed Abdullah Hassan, whose religious tribunals and speeches in the late nineteenth and early twentieth centuries united his followers in the struggle against British colonialism (described in Chapter 2).
Sheikhs are not the only nonstate actors who use shari‘a to resolve disputes. During the Siyad Barre regime in the 1970s, many wadaad – leaders of the call to prayer and performers of rituals like weddings, blessings of newborns, and funerary prayers – also began to open their own dispute resolution offices, though they did not have the high-level training of sheikhs. How did these wadaad go from performing religious rites to being trusted arbiters of people’s complex personal disputes? Religious men had difficulty finding work as civil servants or judges in Siyad Barre’s socialist administration, which led many of them into the small private sector. But, as Somalia was collapsing in the 1980s, the state’s reach narrowed and trust in its judicial system waned. People increasingly turned to sheikhs and wadaad, asking them to resolve their disputes using shari‘a rather than Somalia’s state law. After the collapse of the Siyad Barre regime in 1991, the Somali National Movement appointed both sheikhs and wadaad “as … judges … because they knew … shari‘a.”[3] Because “there was no government, no legal system, no rule of law … they were filling the gap,” a civil servant in Hargeisa told me.[4] Sheikhs, like wadaad, attract disputants by becoming well known for preaching on Islamic faith, theology, and law. Their public lectures, radio addresses, and private tutoring earn them legitimacy among ordinary citizens and help them bring paying clients into their offices.[5] One activist told me, “If I went to the University of Hargeisa and gave a speech to 200 or 300 academics, [it would take me] two or three hours [to get my message across]. But one sheikh can change all their minds in five minutes. They are influential.”[6]
Some prominent sheikhs have also amassed wealth and power from their work resolving disputes or their engagements in other Muslim-majority countries. But people told me they still turn to sheikhs instead of lawyers or state courts for two reasons: trust and speed. Corruption, mistrust, and slow bureaucracy make the state’s courts look unattractive in comparison. A Somali writer in his seventies told me that he felt “religion is spreading [faster] than before” because people are going to sheikhs rather than to state courts for their legal matters.[7] While the parties pay the sheikh a fee to investigate their dispute and come to a conclusion, they also feel that a “bribe is not possible.”[8] Even government officials prefer to go to sheikhs: a senior official in the Ministry of Justice told me that when disputes arose in his own family, they went “to macduum” for resolution rather than to the state courts.[9] Women I met said they, too, preferred shari‘a-based resolution to their disputes on property claims, divorce, alimony, or maintenance. Even though the sheikhs are men, they are more influential in daily life than government officials and judges, who are themselves almost entirely men. “It’s what the religion has said. [Women] are doing the right thing” by resolving disputes using shari‘a, one women’s rights activist told me.[10] Echoing many respondents, another women’s rights activist summarized the role of sheikhs in society and why people turn to them for help: “They are gatekeepers [and] people listen to religion.”[11]
Shari‘a as “Simplicity”
Over time, the process of turning to sheikhs for dispute resolution also builds trust in them and in Islam, just as regularly turning to state courts would build trust in judges and the state itself. Many people saw sheikhs as embodying the rule of law. “To me as a Muslim … this is the rule of law,” one university lecturer told me. He continued,
Because shari‘a has everything in it, there’s no corruption or bribes or [lack of] transparency. And there is immediacy. They [sheikhs] will not hesitate to make a decision. You know God is watching you. You have to strike a fair decision. But in court, there are lawyers who are not faithful. Judges take bribes and drag things on.[12]
A man with degrees in both shari‘a and English common law told me that he prefers shari‘a for dispute resolution. To him, shari‘a offers “simplicity.” Judges who use shari‘a find the truth of a matter themselves. They do not rely upon the arguments of lawyers who may be untruthful or who may abuse the procedural protections of “the Western court.”[13]
Visiting a regional court in Hargeisa, I witnessed a judge request payment from a litigant for his services by using the supplication in Somali, soo duuce. The woman next to me, shaking her head, said, “If people … see [an] injustice [like this], that drives them to shari‘a.”[14] While the sheikhs also ask for fees, the parties must both agree to pay the same service fee in advance, as opposed to a judge who might demand a payment from only one party, or a higher payment from one party than the other – and who also receives a salary from the state.
In practice, sheikhs are one part of a broader dispute resolution system that includes judges who use state law in state courts and aqils and sultans who use xeer within their communities.[15] While this legal flexibility and pluralism gives people choices of venues and processes, it also can generate confusion and animosity. Somaliland’s district courts are descendants of the colonial qadi courts in which judges ruled according to Islamic family law. According to Somalis I met, some district court judges “complained” about sheikhs who seemed to be taking work – and, thus, legitimacy – from the state’s courts.[16] But even some judges turned to sheikhs for assistance in their cases. “In the court, when there are complicated cases related to shari‘a, the judge may refer to ulema shuyuukh [a council of sheikhs] to give their opinion as to what shari‘a says about this issue. And sheikhs give their expert opinion.”[17] Even some lawyers referred to sheikhs’ offices as Somaliland’s “legitimate courts” in contrast with the state’s “non-shari‘a … illegitimate courts.” “Normal citizens,” this lawyer continued, “call the legitimate courts … ‘shari‘a’ … implying that state courts were not doing justice, since … in [sheikhs’ offices], the bribe is not possible.”[18]
In addition to trust, the speed of dispute resolution matters. A university administrator I met in Hargeisa told me that “If you want to solve a matter immediately … go to the sheikh. If you want to continue arguing … go to the formal courts.”[19] Another said of the sheikhs’ offices, “Even if you lose … you still think there was justice.”[20]Satisfaction comes from knowing a case was decided not in a state court influenced by colonial law but in a religious office influenced by shari‘a.
A foreign consultant told me that Somalis turn to sheikhs because “It’s God’s law. Verdicts are far easier to reach [than in state court] and the capacity to enforce the verdict is far greater … Even the person … on whom a fine is imposed … says ‘This is God’s law and I won’t disagree with it.’ This is a conservative society, so they accept it gladly.” He lamented, though, that state courts were “being undermined by a bunch of sheikhs.” But he conceded that not everyone can put out a shingle and claim to be a religious authority. It takes years of study, practice, and preaching to be treated as a religious authority in Somaliland. “You have to spend time learning [and memorizing] the Qur’an. Becoming respected [and seen as a person] with a religious background is not easy.”[21]
People I met estimated that as many as three out of four disputes they have had or witnessed in their families are not resolved in the courts, with most of those going to sheikhs rather than clan elders. According to those familiar with the process, the most well-known sheikhs in Somaliland have resolved personal and corporate disputes in their private offices. Someone familiar with a multimillion-dollar dispute said that the two corporations involved went to a sheikh “because they had greater confidence in getting a fair outcome” than from a state court.[22] Occasionally sheikhs resolve real estate disputes – when someone is willing to swear on their religious tradition that a piece of land is theirs – but land issues are otherwise “difficult to arbitrate,” especially given that government intervention is typically required to produce accurate measurements.[23]
As a way of encouraging people to understand the state courts as Islamic, sheikhs in the Somaliland Ministry of Religious Affairs have the power to issue fatwas, or religious edicts, and to intervene in district court decisions. If litigants feel a state court judgment was unfair from an Islamic point of view, they may file a complaint with an investigative office of that ministry. The ministry’s sheikhs are civil servants who, in addition to advising the government on religious matters, may determine whether a judge incorrectly interpreted shari‘a texts related to a case’s substance or procedures. Sheikhs from the ministry then meet with the judge to resolve the matter or to encourage the judge to issue a different decision.
Governing the Sheikhs
In the early 2010s, the Somaliland government and the international aid community joined forces to try to “make [the macduum] more formal” by regulating and institutionalizing them under a state ministry.[24] Because the government was aware of people’s trust in sheikhs and their ad hoc tribunals, they tried to make them part of the Ministry of Justice by licensing them and, more importantly, having the ability to revoke their licenses, thus controlling and limiting who has the power to use Islam.[25] “If [macduum] were institutionalized under the government … it [would be] easy to trace their cases and … have confidence” in them and in the government, the founder of a Somali research organization told me.[26] Some, especially younger men with religious training in Saudi Arabia, suggested that officials should control who is licensed. Others in the government said the Ministry of Justice should register sheikhs just as they register lawyers. Others, including aid workers, called for a single case management system that would integrate cases from the courts, sheikhs, aqils, and sultans.
But the government faced resistance from sheikhs who felt institutionalizing their tribunals was “the same [strategy] like the British,” as one sheikh told me.[27] The strategy would put Islam under the state’s control, rather than the other way around – a difference deeply important to those who believe that God’s authority is final. Indeed, elites in Somaliland have long disagreed over the extent to which the government should license, regulate, and oversee sheikhs. Many sheikhs did not want state oversight of their work. Other Somalis suggested privately to me that macduum offices ought to be taxed or that they were unconstitutional. Still others saw the sheikhs as a way to relieve pressure on the state’s sluggish and overburdened judicial system. But the lack of women sheikhs made international NGOs less likely to support the macduum as a major dispute resolution process. Although there were no women judges in Somaliland either, such groups thought that the state system might be more willing to accommodate women judges in the future.[28]
Somaliland is not alone in the desire to bring sheikhs and their dispute resolution offices under government control. Puntland’s regional Ministry of Justice has registered sheikhs to work as dispute resolvers, with UNDP’s support, according to my interviews with aid workers involved in these efforts.[29] The UNDP officials also initially wanted Somaliland to adopt macduum-related legislation so that sheikhs would serve as “mediating bodies” to rehabilitate youth who might otherwise be sent to prison.[30] But Somaliland’s Ministry of Justice sought broader measures, to register the sheikhs and oversee all the work they do.
Though sheikhs’ macduum tribunals are not state courts, they “are so strong that … they are regarded as courts” by many Somalis.[31] Though macduum tribunals are unregulated, sheikhs nevertheless benefit discursively and materially from the Islamic state around them, starting from its constitutional text. In Somaliland, one sheikh told me, “Muslim scholars … are free.” He contrasted Somaliland to Somalia’s Siyad Barre regime, under which he could not find work or publicly teach his interpretations of shari‘a. “The role of sheikhs is increasing,” he continued.[32] In Somaliland, shari‘a has helped to build an extended period of peace and stability, from the bottom up as well as from the top down.
CONSTITUTING AN ISLAMIC STATE
In the late 1970s, local and diaspora Somalis began meeting to discuss political problems under Siyad Barre. Their efforts grew into a transnational political movement, formalized in 1981 as the Somali National Movement (SNM). The SNM included diaspora Somalis in the UK and Saudi Arabia along with Somalis in what was then northern Somalia. In Hargeisa, a group of professionals – among them doctors, engineers, and lawyers – formed a committee to attract foreign donor funding to rebuild the inadequate Hargeisa Hospital. Viewing their search for foreign support as an affront to the regime, Siyad Barre’s security officers arrested them. They came to be known as the Hargeisa Hospital Group. They were tried in a national security court, called badbaado, which targeted and executed dissenters. The arrests and detentions of members of the Hargeisa Hospital Group, many for five years or more, alongside other witch hunts for suspected regime dissenters, helped to catalyze the SNM’s growth.
Having experienced the brutalities of authoritarian rule, northern Somalis wanted something better, they told me. Islam was the institution they could trust, and they felt Siyad Barre had tried to destroy it. “The revolt against Siyad Barre made Islam strong,” according to a human rights lawyer.[33] The successful ouster of Siyad Barre’s authoritarian regime in 1991 strengthened people’s resolve to introduce an Islamic state.
From the start, the SNM relied upon the religious discourse, personnel, and symbols. A lawyer and former SNM militia leader told me that the movement’s long-term goal was to “get rid of” Siyad Barre and replace the dictatorship “with a better system” rooted in religious faith.[34] Faith inspired the independence struggle. Many SNM leaders had “links with Sufism [and] Islamic teachings.”[35] Aqils became the SNM’s on-the-ground support team. Using Islam, the aqils mobilized and inspired people to recruit feed, and house fighters in the civil war against Siyad Barre’s regime.[36] Somali National Movement fighters were taught about Islam, told by their leaders that they were fighting the government on behalf of Islam, and given the designation mujahideen (holy warriors).[37]
While Somaliland had no independent government to speak of in the 1980s, the SNM did create its own courts. According to a sheikh I met, the SNM had employed his father – also a sheikh – as a judge: “The SNM used sheikhs as judges,” he told me. Not trusting Somali state law made in Mogadishu and inherited from Italian colonialism, the sheikhs instead used Minhaj al-Muslim (Arabic, The Way of the Muslim), a two-volume guide on practicing creed, righteous character, and good deeds. “When there [was] no government, no established system, the people [went] back to alMinhaj,” the sheikh told me.[38] The SNM encouraged sheikhs and disputants to treat Islam as the bedrock of peacebuilding. These became the first steps toward stability in the area that would reassert itself as the nation of Somaliland, a region that Siyad Barre’s regime was simultaneously trying to destroy.
Throughout the 1980s and early 1990s, the northern region of Somaliland weathered Siyad Barre’s military assaults and aerial bombardments. After he fled to Nigeria in 1991, Somaliland did not automatically become peaceful. On the contrary, it was devastated. Victims’ bodies had been dumped into mass graves. Thousands more had fled as refugees. A decade-long civil war, years of mistrusting Mogadishu, and the Somali state’s 1991 collapse all brought survivors to exhaustion. “It was difficult to make [people in Somaliland] reconcile with [the], state, police, courts” in this context.[39] Somalis I met who had returned in the early 1990s found militias controlling major towns and regions.[40] Soon, the SNM’s internal rivalries, and clan resentments buried by the civil war against Siyad Barre, percolated to the surface, leading to battles in Somaliland until about 1995.
However, as violence was taking hold between communities in Somaliland, and as warlords were controlling southern Somalia, elders and religious leaders in the north were coming together to return stability and autonomy to the region. While Somaliland weathered its own clan-based political violence, warlords did not take over as they did in Somalia. Moreover, elders and religious leaders came together earlier and more regularly in Somaliland than in Somalia, helping to build a more gradual and sustainable peace. They held a series of peace summits between 1991 and 1997; the five largest summits helped to shape Somaliland’s nationhood and fortified Islam as its foundation (Table 5.1).[41]
Local norms (xeer dhaqanmed) demanded that religious leaders – alongside women, children, and the frail elderly – be spared from violence. A customary practice called birtu ma gaido (the iron cannot touch them) protected religious leaders from exposure to violence so they could focus on peacebuilding. As one woman who survived the disintegration of Somalia in 1991 told me in her new hometown of Nairobi, Islam “became very strong because the state [had] collapsed … Islam [was] the only unifying factor.”[42] During the 1990s Somali elders seeking to build peace in the newly independent Somaliland promoted the shared principles of shari‘a and human rights, in the words of one diaspora Somali lawyer involved, to “set the proper roots for the reborn state to live peacefully and build democratic structures.”[43] Laws inconsistent with shari‘a and international human rights treaties were deemed inapplicable. Thus, the legal backstops provided by shari‘a and human rights gave Somaliland’s elders a foundation for the rule of law – an Islamic foundation – that moved Somaliland, without major foreign aid or intervention, out of Somalia.
By 1991, the SNM’s mujahideen had captured most cities in northern Somalia from Somalia’s weakening military. The SNM administered the region until 1993.[44] During those two years the mujahideen gave judicial authority to elders, sheikhs, aqils, and sultans most known for their commitments to protecting Islam and building peace. When sitting as ad hoc decision-making councils, these elders were called guurti. The guurti were the region’s de facto political leadership during the violence. Over time the guurti came to be elected and institutionalized, with representatives of different clans working together. One leading Somaliland government official, who had also been involved in Somaliland’s peace negotiations in the 1990s, said that “The guurti were the tool we used to reconcile with those tribes who had been supporting Siyad Barre, so people would not take revenge [on one another] or continue the war.”[45] Though never formally recognized by Mogadishu or the outside world, the guurti summits, also called conferences, tell the story of Somaliland’s separation from Somalia and how elders turned to shari‘a for support (cf. Table 5.1).
Table 5.1 How shari‘a created Somaliland
| Event | Date | Outcome |
| Guurti Summit in Berbera | Feb. 1991 | Trust built between rival groups in the Somaliland region, paving the way to a joint statement of independence |
| Guurti Summit in Burao | April–May 1991 | Shari‘a described as basis of Somaliland law; independence from Somalia declared May 18, 1991 |
| Guurti Summit in Sheikh | Oct. 1992 | Draft national charter, which integrated shari‘a and international human rights law, introduced and discussed |
| Guurti Summit in Borama | Feb.–May 1993 | National charter and peace charter debated and adopted; government structure set out; power transferred from SNM to civilian administration; Somalia’s laws in place before Siyad Barre’s 1969 coup declared valid in Somaliland unless inconsistent with shari‘a and human rights |
| Guurti Summit in Hargeisa | Oct. 1996 – Feb. 1997 | Text of interim constitution settled; constitutional provisions declared shari‘a as source of all law; all Somalia’s laws before the 1991 collapse declared valid in Somaliland unless inconsistent with “shari’a, individual rights, and fundamental freedoms” |
| Somaliland Constitution | May 2001 | Constitution, based on shari‘a principles and international human rights law, finalized and approved by 97.9 percent in national plebiscite |
Source: Author interviews with summit delegates; Bradbury (2008).
The first major guurti summit took place in February 1991 in the coastal town of Berbera, two months prior to Somaliland’s declaration of independence from Somalia. In Berbera, elders representing the region’s rival groups met to end interclan fighting and rebuild trust between their communities. Two months later, in May 1991, they reconvened in the town of Burao (in Somali, Burco) for the second guurti summit. The delegates named this summit the Grand Conference of Northern Clans (Shirweynaha Beelaha Waqooyi). At Burao, the guurti formally declared Somaliland’s independence from Somalia.[46] Though no constitution was drafted in Burao, delegates spoke of requiring the future Somaliland government to implement shari‘a, according to one of them I met.[47]
Outside of the delivery of international aid to the Somali people and UN assistance clearing landmines, the guurti purposefully avoided foreign help, which they saw as political interference in their work. Just one foreigner – a representative from the British Embassy in Addis Ababa, Ethiopia – attended the 1991 Burao summit. But the delegates gave this British diplomat “a memorandum [saying] that we are the Somaliland community … and … in solving our peace, we don’t need any [foreign] intervention.”[48] In contrast to Somalia’s peace process, which occurred in foreign countries with the involvement of foreign groups and donors, Somaliland and its guurti seemed to go it on their own.
The third guurti summit – and the first after Somaliland declared independence – took place in October 1992 in the town of Sheikh. There, a few dozen elders and religious leaders brokered a peace deal between rival groups in the coastal town of Berbera and introduced Somaliland’s draft national charter. The final national charter would become Somaliland’s temporary governing document until a constitution was drafted and ratified. The elders integrated shari‘a and human rights into the charter to prevent Siyad Barre’s authoritarian excesses from recurring.
The fourth major summit, held in 1993 in the town of Borama, was a watershed for the rule of law in Somaliland. The Conference of Guurti of the Communities of Somaliland was also known by its Somali name, Allah mahad leh (Tribute to God).[49] At this summit, SNM mujahideen formally transferred their authority to a civilian administration, and the delegates ratified two legal documents: a peace charter and the national charter, which laid out Somaliland’s governing structure and separation of powers. The guurti decided that, rather than write every law from scratch, all laws enacted in Somalia prior to Siyad Barre’s 1969 coup would be valid in Somaliland, with the important check that any laws contrary either to shari‘a or to “fundamental rights” could be voided. In this way, the guurti formalized shari‘a principles and human rights law in Somaliland’s charter. The civilian administration did pass new laws, but considering whether bills were consistent with Islam was an essential step in writing any legislation. According to those involved, “When we [were] preparing [new] laws, we [had] to look, is there anything against shari‘a?”[50]
Somaliland portrayed itself decisively as an Islamic state. On October 14, 1996, a new flag was revealed which, unlike Somalia’s, features the central statement of Islamic faith: La Allah illah Allah, wa Muhammad Rusul Allah (“There is no God but God, and Muhammad is the Messenger of God”). Islam was literally inscribed on the symbol of Somaliland’s sovereignty (Figure 5.1).
Figure 5.1 Shari‘a and the Somaliland flag.
In 1997, at their final summit in Hargeisa, the capital of the newly independent Somaliland, the guurti maintained the structures of government – a presidency, a judiciary, and two parliamentary houses (one House of Representatives and one hereditary house for elders, called the House of Guurti) – which had been laid out in the national charter. They also settled on a text for Somaliland’s interim constitution, which would be put to a plebiscite four years later. The constitution’s text was at first contentious, with two drafts in circulation. One draft was written by a parliamentary committee. The other was written by Mohammed Ibrahim Khalil, a former minister of justice of Sudan and former dean of the University of Khartoum Law Faculty. Somaliland President Egal had hired Khalil because of his knowledge of Islamic and non-Islamic law and his facility with both Arabic and English.[51] When the final text was settled, the constitution began and ended with references to shari‘a and human rights. The preamble declared that shari‘a was the primary source of constitutional law, alongside principles about the protection of life and property rights drawn from Islamic jurisprudence and international human rights law. The constitution’s final article declared that all of Somalia’s laws valid at the time of the 1991 collapse, including laws of the Siyad Barre regime, would continue to be valid if they did not “conflict with the Islamic shari‘a, individual rights, and fundamental freedoms.”[52]
The interim constitution of 1997 did not erase Siyad Barre’s legacy. Many judges who had worked within the regime continued to resolve disputes over property and inheritance, among others, that emerged as people returned to Somaliland to rebuild their lives. The new civilian administration also retained the regime’s criminal and civil procedure codes, though these were in force only to the extent they did not conflict with human rights or shari‘a. This exception enabled Somalilanders, according to those involved, to “select the laws we wanted” while any “draconian laws [fell] under the human rights exception.”[53] The framers were also “interested in differentiating faith from the state” by creating an Islamic state that they hoped would protect religious freedom. “If I am a Christian,” a sheikh involved told me, “I should not be persecuted for that.”[54] He said the commission agreed that the constitution of Somaliland must be “against terrorism, and [indicate] that shari‘a is the supreme law and that people have freedom and human rights.”[55] While there had been disagreement – even amongst religious leaders – about whether to include shari‘a in Somalia’s first constitution of 1960, Somaliland’s 1997 interim constitution was another matter. Sheikhs in Somaliland were “united for the imposition of shari‘a,” one of them told me.[56] But they differed on what that meant in practice.
The guurti created a state in which Islam would check government authority. That is, the government could pass laws it deemed necessary, but leaders had to ensure that those laws were compatible with Islam. Political leaders aimed to integrate shari‘a, custom, and Western notions of the rule of law: “We were trying to reconcile between the notion of the government and its rule of law with the traditional mechanism[s]” rooted in shari‘a.[57] In Somaliland’s political development, shari‘a was interpreted flexibly: “[The constitutional rule that] anything against shari’a is null and void … does not mean that we are taking shari‘a exactly [as written in the Qur’an and Hadith].”[58] Shari‘a, then, seemed similar to human rights principles. Not only was shari‘a loosely defined and difficult to enforce, but it also provided a set of discursive resources for legislators to use when making laws and for people to use, later on, when questioning legislation.
Somaliland’s founders thus used Islamic tools to construct principles of the rule of law. The state’s 2001 constitution embodied its Islamic foundation. In 2000, the civilian administration made some final amendments to the 1997 interim constitution and put the legal document to a plebiscite. On May 31, 2001, the constitution was approved, winning 97.9 percent of the more than one million votes counted, according to the Somaliland government.[59] As of 2021, this constitution remains in force.
According to a senior official involved in the process, Somaliland officials were proud of their work. “The absence of [Western] intervention [in the constitution] was a blessing. It was our own indigenous … people” who drafted it, one former government minister said.[60] Civic activists agreed. Echoing others I met, one activist said, “The constitution was a local project … not internationally funded.”[61] While the guurti made sure that there was little or no legal, political, or financial interference from the West, Somaliland’s constitution was not entirely an indigenous creation. First, a government official from Sudan helped to draft one version, whose text aiming to create a democratic Islamic state was integrated into the final constitution.
Second, as a former university administrator in Hargeisa told me, “The colonial [process] still operates” in Somaliland’s constitution.[62]Western forms of government shaped Somaliland’s governing structure. The social – but not legal – separation of Somaliland’s communities into groups known as clans crystallized during the British colonial administration. The colonial policy of indirect rule – employing local Somali leaders rather than British officials themselves ruling directly – entrenched this clan-based social order.
Even though there was little Western intervention in the 1990s as Somaliland was constituting itself as a nation with its own state agencies, government buildings, schools, police, and currency, past foreign interventions and an awareness of parliamentary and presidential systems overseas still made their way into the constitution, while shari‘a served to balance or check the government’s power. The constitution “borrowed some things from” the United Kingdom (including a hereditary upper chamber of parliament called the House of Guurti, more resembling the UK House of Lords than the US Senate) and the United States (a Supreme Court with constitutional and appellate authority).[63]
When I asked people about the constitution, their responses revealed the importance of Islamic political debates. A civic activist told me that, in her experience, “People [in Somaliland] saw what [al-Shabaab] did in the south: cutting … hands, strong laws, manipulating people. People [began] questioning what does religion mean in the Somali context, because of what happened in the south.”[64] People were also “fed up with … secular leadership [and] we need[ed] Islam, shari‘a,” recalled one lawyer.[65] A sheikh, one of the constitution’s drafters, agreed with this sentiment. He and his colleagues made shari‘a prominent in order to forestall extremism. “I had a fear [that] if those extremists come in, [Somaliland] would change. I wanted a balanced view of Islam” in the constitution, which led to “introduc[ing] Islam in accordance with [our] customs,” he told me. He concluded that creating an Islamic state meant that “we won” over jihadists.[66] The constitution went a step further by promising to maintain religious and political freedoms.
Western groups and governments have largely been absent from Somaliland’s political and legal progress, in part because they decided not to recognize Somaliland’s independence so as not to encourage further fracturing in the region. But Somalilanders told me that they also did not want them around, to avoid the mistakes they felt Somalia was making. Somaliland, people told me, had “no [meetings] in Nairobi and no fancy lawyers” in hotels drafting constitutional text, as in Somalia’s peace process.[67]
When I asked Somalis about the rule of law and what it means, many immediately cited Islam and shari‘a. “The supremacy of the constitution is grounded by shari‘a. Any act of government is null and void if it’s against shari‘a,” a former judge reminded me.[68] Imams have used political conflicts between the government in power in Hargeisa and opposition parties as opportunities to preach that the constitution itself is “un-Islamic” or not Islamic enough because the Western concept of the state, in their view, threatens Somaliland’s stability.[69] During my fieldwork, parliament was debating a commercial banking system; many parliamentarians and sheikhs spoke out against it, advocating instead for an Islamic finance system. Some of them did so by citing Article 130 of the Somaliland constitution that all new laws must be consistent with shari‘a.[70]
State officials I met had no clear understanding of who would decide whether and how a law is consistent with shari‘a. The idea was that legislators as a group would police themselves, protecting the sanctity of shari‘a or risking God’s judgment. Some people instead argued that the task should be formalized through a commission of ulema (called majlis al-ulema), or scholars of shari‘a who could review proposed bills for their consistency with Islam and also oversee local sheikhs who resolve disputes. Some early drafts of the constitution included such a council, but were rejected by the president and ultimately never implemented. When I asked one sheikh about his hopes, he said he wished for the establishment of an ulema commission with the power to review legislation prior to enactment.[71] No one knows how much the political attitudes of any such commission might dictate its findings, much as rulings of high court justices in other countries are correlated with political preferences, ideology, and strategy.[72] An ulema commission would be designed, like the constitution itself, to limit the arbitrary exercise of power by legislators through a religiously informed rule of law.[73]
Following the successful constitutional plebiscite in 2001, the Somaliland parliament passed laws to protect judicial independence.
The Organization of the Judiciary Law of 2003, in particular, aimed to ensure that the judiciary does not become a tool of autocrats. It reiterated constitutional provisions to guarantee judicial independence from the government in power.[74] The law also clarified that, while individual disputants may turn to mediation and other dispute-resolution mechanisms among community and religious leaders, the government may not create any special or emergency courts with the power to issue criminal penalties.[75]
The decision to link shari‘a with “individual rights and fundamental freedoms” in constitutional law did not come easily. Some religious leaders and elders disagreed. They adopted the “attitude … that everything comes from the Qur’an, that the Qur’an [alone] should be the constitution.”[76] A constitution was itself a form of secularism incompatible with their version of shari‘a. Though different interpretations of the Qur’an caused leaders to disagree about how Islam ought to be integrated into the state, they still agreed on the principle of an Islamic state. As constitutional architects told me, “The role of shari‘a is increasing. We are going the way of Islam, rather than [the] secular” way of state-building.[77]
CONTAINING THE ISLAMIC STATE
This section examines the international aid community’s relationship with shari‘a through aid workers’ three main activities promoting the rule of law in Somaliland: legal education, legal aid, and legal reform. Though they need not do so, each of these programs seems to work against shari‘a by codifying competing legal orders and undermining shari‘a’s indigenous democratic development. That is, legal education, legal aid, and legal reform are attempts to build state structures familiar to outsiders and make them trustworthy to locals, while restricting the role of shari‘a.
Just as the colonial and authoritarian administrations in Somalia centralized the legal system, so too has the international aid community sought to centralize law in Somaliland. United Nations agencies, particularly UNDP, have led efforts to fund and staff legal education, legal aid, and legal reform projects that thwart the local potential of shari‘a. These agencies have supported successive governmental efforts to create a single state law in the face of legal pluralism. The irony of UN support has not gone unnoticed by Somalilanders and aid workers alike: “On the one hand, they … do not recognize Somaliland as sovereign. On the other hand, they support the government to draft [new] laws that augment its ‘stateness’.”[78]
A new era of legal confrontation has emerged between aid agencies delivering legal assistance and ordinary people who continue to turn to shari‘a and other mechanisms of dispute resolution. As in earlier colonial and authoritarian administrations, law and religion exist in tension in Somaliland, as elders, officials, and aid workers search for order. Through this process, shari‘a has become a force in legal politics, something to be controlled rather than promoted.
The hallmark of state-building is the creation of legal orthodoxy out of legal heterodoxy. The international aid community takes three interrelated approaches to centralizing Somaliland’s legal system. Legal education involves establishing law schools. Legal aid refers to programs that help the poor access state courts. And legal reform includes training legal personnel and drafting bills for passage into law. In order to build the rule of law as they envision it, aid groups seek to separate religion from law and subordinate Islam to state law, tethering shari‘a to the ideals they find satisfactory.
Legal Education
In 2013, I met with a senior law professor at the University of Hargeisa. As we walked on the sand between dilapidated buildings he told me that one positive consequence of Somalia’s civil war was the development of legal education in Somaliland. When I asked him to explain, he said, “The war helped create legal development, because we had to create a building. You know, the buildings were destroyed. This tree is famous … in the history of Somaliland. It is under this tree that the law faculty began.”[79] The destruction of Somaliland, he continued, had led to the creation of its first law school. Today this law faculty – and other law faculties around Somaliland – are centers of learning that teach students how to navigate the state’s legal orders and give primacy to state law.
The Horn of Africa’s first modern law school was opened by Siyad Barre in 1970 at the University of Mogadishu. It became fully operational by 1974, teaching a curriculum focused largely on Italian jurisprudence. Legal pluralism was a challenge from the start; English common law still prevailed in the north because of its distinct colonial heritage. Many Italian professors arrived in the 1970s and 1980s, but the law school collapsed with the regime in 1991. No state law school operated outside of Mogadishu until 2002, when the University of Hargeisa, founded in 1998, opened its Faculty of Law. The curriculum was dictated in part by UNDP, which hired foreign consultants to work alongside Somali scholars. Those involved had a diversity of legal training from jurisdictions in North America, Europe, South Asia, the Middle East, and elsewhere in Africa.
I asked university administrators and teachers why they wanted to open a law faculty in the war-torn region. They told me they hoped to assuage people’s concerns about state power. According to one professor, “People respected traditional laws and … shari‘a a lot,” but they had a “phobia” of state law.[80] A senior university official told me that the University of Hargeisa launched its law faculty in part through UN involvement: “UDNP intended to develop the rule of law and security.” The law faculty would be a pipeline to government service. “Injecting” people into government as advisors and prosecutors, he continued, would strengthen the state and people’s trust in it.[81] (Although the state budget did not allow for massive hiring, many students received post-graduation internships in government ministries.)
Not all the founders of the University of Hargeisa Faculty of Law (also called College of Law) agreed with the curriculum dictated by UNDP, but their objections were overruled. According to those involved, “Most of people here wanted shari‘a and Arabic language,” but an American consultant with experience in Kenya who led the effort on behalf of UNDP wanted the University of Hargeisa’s curriculum to match those of Nairobi and Kenyatta universities.
We discussed it. We said, ‘We must be wider [than the Kenyan curriculum] and consider the culture of Somaliland.’ Arabic is important. Since judges will be using ahkam [Arabic: rulings], fiqh, and the Qur’an, we wanted the name, ‘Faculty of Law and Shari‘a.’ But [the American consultant] said, ‘[No,] the curriculum should be compatible with Nairobi.’[82]
The four-year curriculum’s emphasis was on English common law, taught in English. Three courses were taught in Arabic and Somali: Islamic jurisprudence (usul al-fiqh), Islamic succession and inheritance, and Arabic language. The curriculum confined shari‘a to family law disputes, just as colonial and Somali state law had done. A senior professor at the university told me that the Faculty of Law is purposely not called a “Faculty of Shari‘a and Law,” as in other Muslim-majority contexts, in part because its curriculum is mixed – dealing with domestic and international law – and in part because the university had already opened a faculty of Islamic studies.[83]
Somalis I met mentioned that three legal orders co-exist in Somaliland – shari‘a, state law largely derived from European colonialism and interactions with contemporary aid agencies, and the locally binding rulings of elders, aqils, and sultans. At the University of Hargeisa, the law faculty largely trains students in state law derived from colonial sources, while minimizing the study of Islam and ignoring the local rulings of elders and aqils. The four-year undergraduate law degree curriculum is approximately 30 percent general education (e.g., courses in Somali literature, English language, and computer skills). The remaining 70 percent is devoted to the law major, split between domestic law and international law (60 percent) and shari‘a (10 percent). All first-year students must take an Introduction to Laws course that provides historical background on the Somali legal system and its diverse sources – laws and rulings made by the government, elders, and sheikhs. Students then take a range of courses related to English common law, including criminal law and procedure, civil law and procedure, contract law, maritime law, commercial law, and constitutional law. Students may also take up to three courses in shari‘a – al-dhamaan (Islamic tort), al-ahwal al-shakhsiyya (personal status/family law), and al-mirath (succession).
Following four years of coursework, a one-year internship is required to register as a practicing lawyer with the Ministry of Justice, which keeps an official roll of licensed lawyers. A one-year internship with the judiciary is necessary to register as a judge. The result is that many new lawyers are better prepared to practice in state courts than to understand the intricacies of Islamic law. One person lamented to me that “Many lawyers … are lacking the shari‘a component” in their understanding of procedures and traditions.[84] Resort to Somaliland’s district (lower) courts, which use shari‘a for family matters, is more common than to the regional, appellate and supreme courts, which means that law students are trained best for the rarer work even within state courts. Students’ lack of training in shari‘a is also remarkable because of the prominence of shari‘a in other parts of Somaliland’s pluralistic legal system.
While the University of Hargeisa’s first class of law students included some fresh out of secondary school, many men in their fifties and sixties working in Somaliland’s government also enrolled. They were politicians building the nascent state while attending law school. According to one of the class members, the law school “was … for Parliamentarians.”[85] Their fees were paid by UNDP. Courses taught political leaders to learn global legal norms and limit potential government excesses, thus creating bulwarks for the rule of law. According to one professor, “Most of our [early students] learn[ed] the law to participate in [state] politics. If you are a lawyer, you will be a successful politician [and] you know you cannot go beyond the laws.”[86] By the time of its 2006 graduation, the inaugural class included people who were also senior government ministers, judges, and elders.
After 2002, UN agencies began replicating the University of Hargeisa’s legal education program by helping launch new universities and law faculties across Somaliland, including in Ammoud and Burao. Private universities were also established, as more Somalis sought higher education. Once other law faculties were built, they needed students. A culture of skepticism and mistrust endured, as state courts used criminal and civil codes inherited from colonial rule. To counteract prejudices about the legal system and attract students, the University of Hargeisa law faculty began to hold “legal awareness” trainings and seminars for judges on the new legal programs.[87] As UNDP increased its funding of scholarships, law school class sizes increased. Law degrees helped graduates secure jobs in government and with aid agencies. By 2020, the University of Hargeisa had graduated 732 law students – 481 men and 251 women (Figure 5.2).
Figure 5.2 University of Hargeisa Faculty of Law graduates (through 2020).
Law graduates I met in Somaliland offered diverse reasons for going to law school. One person said that he realized that law and courts were not just about crimes and “bad people,” but about helping “the state.”[88] Others saw Somaliland’s politicians work to stabilize society and the economy after the civil war, so they studied law because of its relevance to politics.[89] (University of Hargeisa does not offer a degree in politics, but in 2013 it launched a master’s degree in international relations, in which I taught research methods as a visiting professor in 2014.) Others told me they chose law school to help the poor or become human rights activists. Some of them would have preferred to study medicine, psychology, or sociology, but found these degree programs neither feasible nor cost-effective. Such programs were still emerging and required more years of study; their graduates were also less employable given that work for aid groups was generally most lucrative. Such students saw law as the best option for getting a job or consultancy with an aid group.[90]
One person said his motivation to attend law school was to learn the Islamic and Western origins of Somaliland’s legal system in order to integrate shari‘a and law.[91] Others said they studied law because of the UNDP scholarships they received; the organization gave most of these scholarships to women to increase their numbers in the legal profession. As aqils, sheikhs, and sultans, men are the main dispute resolvers in Somaliland, and UNDP sought to give women a way into state courts. Others chose to attend law school precisely because they felt Islam demanded it. “Shari‘a says you should learn every subject,” one law graduate told me, contrary to public perceptions that studying law means disrespecting “traditional laws and Islamic shari‘a.”[92]
Somali law students face challenges that reveal the tense relationship between shari‘a and state law. The decision to study law was rarely easy. Many saw a troubling disconnect between “legitimate” dispute resolution in Islam and “non-legitimate” dispute resolution in state courts, seeing law school as pro-Western and, thus, anti-Muslim. Many consider state law anti-religious because of its colonial and authoritarian legacies and its connections to Western aid organizations. One law graduate admitted to me that people see him as “among those thinking [with] a Western brain.”[93] Others were asked if they were studying the Bible or importing Christian law into Somaliland to curtail Islam. “They said you either study shari‘a, or not. [My decision to study law] made people uncomfortable,” said one graduate from the first graduating class.[94] Another said that people asked him, “There is shari‘a, [so] why are you going to secular law?”[95] At the extreme, some students encountered people who saw “the legal [profession] as a way of going to hell” because they think lawyers defend criminals in a way that is inconsistent with the Islamic tradition.[96]
Women have faced particular obstacles. Women’s education has long been limited in Somaliland. In the 1950s and 1960s the two secondary schools in the region were reserved for boys. Hargeisa had one elementary school for girls, and Burao had one intermediate (presecondary) boarding school for girls. Girls could not get secondary education in Somaliland for many years, which prevented many women from attending university.
While some young women lawyers told me family members or friends encouraged them to attend law school, others said they faced a culture that saw law as Western, anti-Muslim, or immoral. Tradition, they said, prevents women from “talking before men,” by appearing in court before a judge.[97] People say women “don’t have akhlaq [Arabic: morals]” if they study law and that women lawyers are abandoning their “culture, [which means] you do not have dignity.”[98] Another woman, who told me she studied law to become a human rights activist, said that many people questioned her decision to go to law school: “It’s Western law [and] you are a Muslim. That’s not good for our country.” She said she had to remind those people that the primary sources of shari‘a – the Qur’an and the Hadith – encourage education. She summarized why she studied law: “I want to support my Islamic religion [and] I want to be an educated woman … Our Islamic religion encourages us to learn.”[99]
The problem of legal pluralism that plagued the University of Mogadishu Faculty of Law curriculum decades earlier continued to plague the law school curriculum in Somaliland. Retention of old laws, including from the era of Siyad Barre, exacerbated this problem. One professor told me, “The criminal procedure I’m teaching here is from 1960, but everything has changed.”[100] Because of Somaliland’s vestiges of British colonial rule, many law books are from the UK and long since outdated. Perhaps for these reasons, students and graduates I met refer to shari‘a as “more advanced” than state law.[101]
The question of whether to teach students shari‘a, state law, or a combination presents acute challenges. Newer law schools in Somaliland are adopting a different approach – teaching shari‘a together with state law in an attempt to co-opt shari‘a. An administrator from Borama University in Somaliland told me he felt “UNDP prefers these things together, like our Faculty of Law and Shari‘a.”[102]The goal of combining Western forms of state law with shari‘a is to “establish … a rule of law where [state] law is supreme,” a senior government official and University of Hargeisa law graduate admitted.[103] Some lamented that it was “a pity” that UNDP backers did not consider teaching shari‘a as important as teaching state law.[104]
Some Somalis wished to integrate shari‘a more fully into legal education because “You must know [both] shari‘a and formal law” to resolve disputes in Somaliland.[105] Others hoped that the UN officials would be convinced of the local importance of shari‘a: “We are one hundred percent Muslim. [Shari‘a] is good for us. Our judges and young professionals need to know about [both] the codified legal system and shari‘a.”[106] A sheikh said he aimed to “teach [university students] Islamic and secular studies together.”[107] One person’s hopes for Somaliland rested with its law faculties, that, over the long term, would graduate people who “will be conversant with shari‘a … and … have … a better understanding of statutory laws.”[108]
Legal Aid
During my fieldwork, I spent time with legal aid organizations that help the poor access state courts or file claims; I observed lawyers and paralegals in their organizations’ offices and court appearances. I found remarkable the ways in which lawyers trained in Somaliland’s law schools tried to harmonize state law, shari‘a, and local custom in their minds and practices. Some legal aid lawyers took cases before regional courts, which rule according to state law in contract, crime, and personal injury. But many of the legal aid lawyers I met also took cases before district courts, where their clients sought to resolve family disputes and judges were meant to rule according to Islamic family law. Legal aid lawyers told me the majority of their clients in the district courts were women bringing cases against spouses and former spouses on behalf of themselves and their children, since these women felt they had little chance of success in customary dispute resolution practices dominated by men.
The University of Hargeisa Faculty of Law and a handful of local lawyers’ associations organized legal aid programs. By encouraging people to take their disputes to state courts rather than to elders or sheikhs, such programs were making the courts into a separate and parallel system, partially linked to shari‘a and partially abandoning it. The University of Hargeisa’s legal aid clinic opened in 2003, with an office on campus and another across the road from Hargeisa’s courthouses. The name was changed to “legal aid services” after Somalis complained that the word “clinic” suggested the clients were sick people. In 2007, on the recommendation of a consultant from Harvard University visiting on behalf of the United Nations, legal aid became a permanent part of the law faculty’s curriculum. The legal aid course became mandatory in students’ third year so they would gain practical experience before returning to their remaining coursework in the final year.[109]
Many returned to the clinics after graduation to work as paid professionals in legal aid, where their salaries were funded by UN agencies and they could realize humanitarian impulses by helping the poor. One person said, “I knew my people [were] poor [and did not] know the law. Also there were vulnerable groups [who] don’t have anyone to help them [and] look [out] for their rights.”[110] The opportunity to help vulnerable persons access legally guaranteed rights – particularly people who had been convicted of minor crimes but kept in prison for long periods of time without legal support – was crucial for such legal aid workers. Though state law seemed to dominate legal aid programs, I even met sheikhs who moonlighted as legal aid lawyers.
United Nations agencies have funded legal aid programs throughout Somaliland to build trust in the court system, particularly among the poor, because “there is no confidence in the courts,” as one attorney told me.[111] United Nations activity reports from Somaliland explain that legal aid attorneys were trying to solve this problem by holding judges to high standards of legal training while providing legal representation to those who could not afford it.[112] In practice, the state courts become just another forum for dispute resolution, competing with the activities of nonstate actors like sheikhs, aqils, and community leaders. If people are not happy with a result and they have the time, finances, and energy, they may go elsewhere for a better result.
The new legal aid offices that opened in the 2000s faced important challenges. First among these was Somaliland’s proliferation of bar associations that competed with one another to attract new graduates and aid dollars channeled into the legal aid programs. Very few lawyers entered private practice. Another challenge has been the fragmentation of the legal profession along gender, age, and training lines. Younger lawyers trained primarily at the University of Hargeisa were most active in the university’s legal aid clinic, while older lawyers were most active in the Somaliland Lawyers Association legal aid clinic and women worked largely with the Somaliland Women Lawyers
Association legal aid clinic. Legal aid efforts funded by UN agencies or international NGOs have thus not only widened the gap between state courts and nonstate forms of dispute resolution but also entrenched a generational and gender divide among lawyers.
Legal aid attorneys experienced the tensions between shari‘a and state law in multiple ways. The attorneys I met felt that Somalis thought the legal aid programs were “spreading secular law” because of UN agencies’ involvement.[113] But people also told me that “As long as these people [in UN agencies] are not intervening in Islam or religion, it’s okay for them to be here” to help.[114] Aid organizations did not try to denigrate Islam, although some individuals might have. Rather, aid agencies’ promotion of state courts aimed to ensure that dispute resolution remained as much as possible in the hands of the state, restricting interpretation of shari‘a to the district court judges and separating them from aqils, sultans, and sheikhs.
One young attorney justified her work by saying that it was “the right thing” in Islam to help “people who cannot access justice,” consistent with UN prescriptions. But there were boundaries to these sentiments. In this attorney’s case, when she saw her supervising attorney defend a person who had murdered someone, she “felt sorry, upset, [and] shameful.”[115] From that day onward, she stopped attending court cases, worrying that Allah would not forgive her, either in this life or in alakhirah (Arabic: the afterlife), for offending Islam. For many legal aid attorneys, what mattered was that they were working with Islamic legal principles. One legal aid attorney told me she preferred to work on shari‘a-oriented cases in the district courts “because we are a Muslim country and we have to apply what our God says and … solve it in our daily life.”[116]
Legal Reform
Echoing earlier efforts to “harmonize” Somaliland’s legal systems, legal reform projects have focused on building the rule of law through three channels: reforming and rebuilding the courts, writing new laws, and training government officials to apply those new laws. These projects also face the challenges posed by people’s distrust of state-sponsored dispute resolution. Like legal aid and legal education, legal reform efforts cut against Somali versions of shari‘a that see it as God’s preexisting limit on state authority.
Legal reform focuses primarily on the judiciary. Somalis and expatriate aid workers are familiar with Siyad Barre’s political interest in the judiciary; he had set up special national security courts (Somali: badbaado) to try people whom the regime accused of attempting to overthrow it. International aid workers are trying to build formal courts but, as one activist told me, “Many people do not trust in these institutions [and their] competence.”[117] Others avoid the courts not only because of their political history but also because they might have direct access to state officials who might “happen to be my cousin or my relative or my friend.”[118] Legal reform projects aim to counteract this lack of trust in the courts as well as to synthesize the pluralistic legal system by keeping all forms of dispute resolution – shari‘a, custom, and state courts – in line with international human rights law.
As under the Siyad Barre regime, court reform in contemporary Somaliland is also designed to contain shari‘a. Such efforts are no less political than authoritarian projects to align laws with a regime’s wishes. A Somali consultant to aid groups in Hargeisa told me that international aid agencies, like UNDP, focus on the “capacity building” of judges precisely to “encourage … the courts, not [the] traditional or religious institutions.”[119] United Nations agencies proffer an alternative form of dispute resolution centered on the state and human rights. Shari‘a is to be made into a separate and subordinate alternative to the courts, if it is to be an alternative at all. Precisely because Somaliland declared itself an Islamic state in its 2001 constitution, it cannot act like one if it wishes to generate foreign support. That is, “because of regional and international issues” – not least the Islamic Courts Union and al-Shabaab in Somalia – Somaliland’s courts cannot be seen to be strengthening the state’s Islamic foundation, I was told.[120] A proposed legal and judicial reform commission aimed to identify “gaps,” including separating “tradition” from the courts and merging Somaliland’s different dispute resolution systems under the state’s authority.[121]Somaliland toes the line between allowing local, Islam-informed forms of dispute resolution to continue while not embracing Islam too enthusiastically.
While UN agencies and international NGOs have held workshops and commissioned reports on Somaliland’s legal system, including the role of religion and tradition, these groups have not sponsored any laws that would advance shari‘a. Most aid workers are “not Muslims,” and they want Somalis to know “about their rights in international conventions.”[122] Similarly, “the ruling elite … in Somaliland will not accept” strengthening shari‘a, some people told me, because they “want the support of the international community.”[123] Although “many are supportive of … Islam,” they are also worried about “what happened in the south with al-Shabaab.”[124]
Legal reform projects limit the power of shari‘a by ensuring that courts focus on developing English common law. “British law is not outside these courts,” one lawyer told me. He continued, “Outside the courthouses, the [people] use shari‘a.”[125] If the courts also used shari‘a directly, then the judiciary “would seem … .like a religious institution,” which these court reformers want to avoid.[126] According to a foreign aid worker on a UN-funded project, “Donors are not comfortable with shari‘a. You cannot appear to be supporting it.”[127] Some sheikhs told me about a conference in Somaliland in the mid-2000s to which UNDP invited global experts on Islamic and international law to meet with Somali sheikhs. The delegates agreed by the end of the conference that UNDP and other international actors should help “advance … shari‘a in Somaliland.” Because that call was never implemented, delegates felt UN officials refused to acknowledge shari‘a’s importance. “UNDP invited experts [here] from all over the world [who agreed] the best thing is to support … shari‘a. But UNDP is not doing that … It is the same like … British [colonialism].”[128] Even aid workers told me that projects to reform the judiciary “merely pay lip service to local sensitivities or trying to integrate shari‘a.”[129]
Legal reform also involved training lawyers, particularly government prosecutors, to work within a judicial system that respects the rule of law. During my fieldwork I observed a training session, led by diaspora Somali lawyers educated overseas, for new prosecutors appointed by the Somaliland Attorney General’s office. At the training, a British Somali consultant began by telling the Somalis that “What’s going on in the courts is not adequate.” With little attention to the procedures and institutional constraints of Somaliland’s courts, he invited them to apply British prosecutorial standards for presenting a case and calling witnesses. Prosecutors “must use their responsibility … honestly and respect the rights of individuals,” one senior government official told me. “If there’s no crime, the [accused] must be released.”[130] But financial constraints prevented prosecutors from investigating cases. One aid worker who facilitated the training sessions conceded to me that, under Siyad Barre, prosecutors “would go to police stations and look at the files,” but now they “don’t have money to make phone calls … How can [they] go to police stations if [they] have no money for petrol?” The courtroom advocacy skills taught in legal reform workshops focused on the English common law system with little regard for Somaliland’s reality. When I asked the facilitator about it afterward, he explained that he was told to “be careful … not [to] tamper with the shari‘a.”[131]
Another legal reform strategy is writing new laws, including those meant to update outdated laws. Whenever a problem emerges, people told me, a new law about it is drafted. This strategy is not surprising; it was also adopted by the British colonial administration, the early democratic Somali Republic, and Siyad Barre’s regime. As one government official told me of the treaties between the British and Somalis in the nineteenth century, “The British put … agreement[s] on paper [but] the guurti [elders] didn’t believe in paper.”[132] Siyad Barre’s regime passed many new laws, including laws to curtail speech and assembly. According to one Somali lawyer, the Siyad Barre regime “was a dictatorial system [that] propagated a lot of laws” to enforce its rule.[133] Many people in Somaliland saw law through this historical lens – as a means for the state to shore up its colonial or authoritarian power against the people and against Islam. People thus mistrusted the very process of law writing.
In Somaliland, law-writing involves drafting bills with the assistance of foreign consultants, who sometimes work of their own volition, but mostly at the urging of government officials. The bills they put forward in the 2010s included a land tenure code, a veterinary law, child labor and child protection laws, an NGO registration law, banking and corporate codes, a macduum law, and draft laws on electrical energy, taxation, juvenile justice, parliamentary procedures, presidential elections, local councils, business transactions, electronic transactions, youth and child rights, police, gender and women’s rights, licensing lawyers, and legal aid. One Somali told me, “When it comes to formal law, well, there are too many laws.”[134] A foreign aid worker agreed, “There’s so much law. The solution [to any problem in Somaliland] is to write laws, write laws, write laws.” It’s an “aesthetic” solution.[135]
Why draft all these laws? Paradoxically, it comes from a perception that there is a lack of law and the state is weak. As one Somali judge told me, people feel “There are not a lot of laws here.”[136] According to a consultant whom I met for lunch one day at a Hargeisa hotel frequented by foreign officials and aid workers, “Forty factories have failed in the last two years mostly because of the cost of electricity, and that’s directly tied to no [electricity] laws.”[137] The idea was that new laws would create predictability, and that predictability would encourage foreign investment.
Aid groups “basically … parachute in laws,” an expatriate lawyer working in Hargeisa told me.[138] Ministries and NGOs work hard to pass these laws because of financial assistance from UN agencies or international NGOs, but that assistance often means the “agenda was set by someone else.”[139] In one case, I was told, “The priority least important to the citizens of Somaliland,” particularly rural and pastoral communities, “was selected as the priority for donors,” which made the effort feel like “a waste of time.”[140]
Many aid workers and government officials in Somaliland saw legal reform as necessary because Article 130 of the Somaliland constitution requires the state to apply existing laws – even laws from the Siyad Barre regime – until new ones come into force.[141] “Even the monetary value [of criminal penalties] hasn’t changed since the 1960s,” a foreign consultant told me.[142] The director of a civic organization agreed, in particular about laws that affect women, which “are outdated and need to be changed.”[143] New laws, activists felt, would help bring Somaliland in line with the international community. One notable example was the 2018 passage of Somaliland’s first law criminalizing rape, though it was later put on moratorium pending review following an outcry by conservative religious leaders.[144]
Although the goal of drafting legislation was to strengthen Somaliland’s democracy, lawmakers had little intention of actually implementing the many complex laws imported by foreign consultants. Once bills are passed into law, little happens to raise awareness about them or enforce them. “Many NGOs hire consultants to write a law. The consultant gets paid, then leaves. [But] the Ministry doesn’t understand it [and] Parliamentarians weren’t consulted. So [the draft law] just sits there,” a consultant told me.[145]
Writing laws also includes parallel efforts to codify the decisions of aqils and sultans resolving intercommunal disputes under the rubric of xeer and the decisions of sheikhs and macduum offices. These attempts began as early as the 1970s under Siyad Barre, and the international aid community continues them. But many Somalis do not buy it: “You cannot respect the rule drafted by a person over the rule of Allah. They are not the same.”[146] They recognize that shari‘a rests upon differing and competing interpretations of key texts, rather than on a body of written precedents that remain in force until judges overturn them.
A sheikh I met felt that the efforts of Western aid groups are designed “to destroy Islam.” He paused, and looked around him, reflecting on the instability of the region, saying, “You see the result.”[147] A university lecturer and consultant told me, “Shari‘a is more advanced than the laws we are working [to reform].” Shari‘a is “not just an ideal, it is a revelation from God. It has specificity.”[148] But the challenge, I was told, is being labeled a “fundamentalist” or an “Islamist.” An American aid worker agreed, telling me that “Shari‘a is the one [legal order] that gets minimized the most [by aid workers].” He concluded, sarcastically, “That’s the easiest to do … besides the little detail that everyone believes in it.”[149]
While the aid community and their supporters work to revise or write new laws, Somalis are also reframing existing laws to show how they are consistent with Islam. A legal aid attorney told me that Somaliland did not have far to go, as “Most of the articles [in civil law] are … even based on [shari‘a, including] the family law, inheritance, rent, and business transactions.”[150] Among the first laws passed by Somaliland was the Environmental Conservation and Protection Act of 1998, which is the foundation of the work of Somaliland’s Ministry of Environment. Senior government officials told me that this law is based on Islamic principles, not state principles.
Shari‘a will never tell you to cut [down] a forest. It’s illegal in shari‘a [to cut down trees unless] you … replant. People should know that if you cut a tree you should plant another … The forest belongs to God … and our natural resources are God-given, hamdillah [Arabic: thank God]. You cannot cut [trees] indiscriminately and transport charcoal from Sanaag [the forested region of Somaliland] to Arabia and … Turkey.[151]
Sheikhs also have spoken about protecting the environment in their sermons, referencing verses from the Qur’an rather than the 1998 law.
Somalis are also working on enforcement of the rule of law through Islamic mechanisms related to hopes and fears about the Day of Judgment. For Somalis, UN-funded efforts to build the rule of law cannot stand up to the power of Islam to limit corruption and hold government actors to account. Even though “there is no confidence in the courts,” one young civic activist in Hargeisa told me, “if you say a verse [of the Qur’an] to the most corrupt person [in government], he will stop.”[152] To these Somalis, the principles that Western legal scholars would associate with the rule of law, to limit corruption or abuse of power, derive from shari‘a, not from government.
Legal reform projects in Somaliland caused confrontations over the relationship between Islamic law, state law, and international law. The major flashpoints according to those I met were differences between Islamic and international law on freedom of expression, women’s rights, and criminal penalties. “If you want to transplant a Western state into Somaliland, [it] will create a conflict in terms of law … The problem [is that] the West doesn’t understand shari‘a.”[153] The result is confusion about the different aspects or pivots of Somaliland’s legal orders, how to name them, and the meaning and sources of law. The Somaliland government’s proposals for creating a “shura council” or “ulema commission” that would review legislation for consistency with shari‘a aimed at building an Islamic state. But they, too, would ensure that Islamic authority is vested in the state rather than outside it, thereby earning state law some legitimacy.
Some Somalis wanted a different kind of court reform altogether, one that encouraged judges to learn shari‘a more deeply. Better knowledge of shari‘a would hold to account “lawyers who are unfaithful [and] judges [who] take bribes,” I was told.[154] “If the constitution is based on shari‘a [then] judges should be interpreting shari‘a, of course,” one lawyer said of his hopes for legal reform.[155]
Despite investments in Western-style legal education, many young women and men in Somaliland told me they would like to work more directly with Islamic and traditional sources. Despite investments in legal aid projects, many people continue to seek out sheikhs in macduum offices to resolve their disputes. Finally, despite investments in legal reform, many people I met did not understand the purpose of building state law when shari‘a already encompassed these matters and Somaliland already defined itself as Islamic.
CONCLUSION
The history of colonial, authoritarian, and humanitarian interventions in Somaliland reveals a space fragmented not only by warfare and slaughter, but also by a discursive battle between different approaches to law, between foreign law and Islamic law, between customary law and human rights law, and between international law and Islamic law. In the short term, many tried to create an Islamic state that paradoxically sidelined Islam. In the long term, these battles are in part about whose visions of tradition, modernity, and shari‘a will prevail. They are also about the repeated imposition of state power in the lives of Somalis.
In this context, an array of actors sought to build the law in the 2010s. International aid workers tried to construct dispute resolution offices across Somaliland and convince Somalis to use them. The government drafted a bill to put sheikhs’ private macduum offices under its purview. Aqils and sultans continued to use a combination of custom, precedent, compensation schemes, and shari‘a to keep peace after disputes within their communities. All these actors contended with Somaliland’s radical legal pluralism as they tried to promote their own versions of legal progress. The result is a fragmented set of legal reform projects in which foreigners and state representatives try to keep the power of law in the hands of the state while others maintain that law is for all, including those sheikhs who interpret and apply shari‘a to resolve people’s disputes with one another.
This chapter has revealed how few have done more to promote shari’a in Somaliland than those whom Western observers might typically deem its least likely allies – people fighting dictatorship and trying to build peace and constitutional democracy. From the start, Somaliland’s state-builders in the 1990s saw shari’a as a source of hopeful change from God. Somalis continue to turn to sheikhs every day, particularly when they consider state courts slow or untrustworthy. “The people,” as one lawyer told me, “would like to see a state that is based on shari‘a.”[156] After all, as a sheikh recounted, “The whole of Hargeisa [was] demolished [in the 1980s civil war because] the people were asking for something. They were using ‘Allahu Akbar’ [God is great] and … shari‘a when they were fighting Siyad Barre.” Not to base the state on shari‘a would destroy people’s hope for a sustainable peace, he continued, “steal[ing] the feeling of the people.”[157] Shari‘a remains a powerful force in daily life and in government as Somaliland establishes and develops its own Islamic state.
Somaliland’s political elites – state officials, elders, and sheikhs – fight for legitimacy by promoting their own versions of shari‘a. Given their religious training, sheikhs are perhaps the most prominent among them. But relationships among sheikhs have also broken down over their wealth, ideologies, and how to interpret text and tradition, causing some people to lose trust in them. Most sheikhs follow some variation of the Shafi‘i school of Sunni Islamic law, long established in the Horn of Africa. Some belong to Sufi tariqas (brotherhoods) that promote spiritual practices and a closeness with God. Others, particularly younger sheikhs trained by Salafi groups in Saudi Arabia, disapprove of Sufi mysticism and call for narrow or literal interpretations of religious texts. Some sheikhs also have ties to the Muslim Brotherhood, a political and religious movement founded in Egypt. By preaching publicly, advising government officials, or helping people resolve disputes, each sheikh hopes that his own views will win over Somaliland’s communities and the state itself. But, in practical terms, sheikhs do not have a monopoly over the interpretation of God’s will. Building on the descriptive data provided here, the Chapter 6 shows how contemporary activists in Somaliland also champion their own ideal shari‘a, one that is consistent with their hopes of achieving women’s rights.
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NOTES
[1] Interview 33 with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
[2] Interview 59 with Kalim, former NGO executive director in Hargeisa, Somaliland (July 2013).
[3] Interview 41 with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
[4] Interview 107 with Roble Ali, government agency director in Hargeisa, Somaliland (June 2014).
[5] Follow-up interview 93 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (June 2014).
[6] Interview 125 with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (June 2014).
[7] Interview 21 with Ra’ed, writer and consultant in Hargeisa, Somaliland (June 2013).
[8] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[9] Interview 67 with Omar, senior government official in Hargeisa, Somaliland (July 2013).
[10] Interview 55 with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (June 2013).
[11] Interview 125 with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (June 2014).
[12] Interview 49 with Babiker, university administrator and lecturer in Hargeisa, Somaliland (July 2013).
[13] Interview 32 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[14] Interview 104 with Yasmeen, legal aid attorney in Hargeisa, Somaliland (June 2014).
[15] By 2013, 1,600 aqils had registered with the government of Somaliland (1,137 of these receiving a stipend from the Ministry of Interior), an eightfold increase from the 200 aqils in the British Somaliland Protectorate.
[16] Interview 107 with Roble Ali, government agency director in Hargeisa, Somaliland (June 2014).
[17] Interview 100 with Hassan, legal aid attorney and former police official in Hargeisa, Somaliland (June 2014).
[18] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[19] Interview 49 with Babiker, university administrator and lecturer in Hargeisa, Somaliland (July 2013).
[20] Interview 90 with Suleiman, lawyer and paralegal in Hargeisa, Somaliland (June 2014). 21
[21] Interview 22 with Shahab, expatriate consultant in Hargeisa, Somaliland (June 2013).
[22] Interview 6 with Rashida, lawyer in Hargeisa, Somaliland (conducted by telephone from London, England) (June 2013).
[23] Follow-up interview 98 with Tahir, NGO executive director in Hargeisa, Somaliland (June 2014).
[24] Interview 22 with Shahab, expatriate consultant in Hargeisa, Somaliland (June 2013).
[25] Interview 50 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (July 2013).
[26] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
[27] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[28] Interview 20 with Akifah, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[29] Interview 15 with Evelyn, United Nations official in Garowe, Puntland (conducted by telephone from Hargeisa, Somaliland) (June 2013).
[30] Interview 50 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (July 2013).
[31] Interview 78 with Majda, lawyer and human rights activist in Mogadishu and Hargeisa (conducted in Nairobi, Kenya) (July 2013).
[32] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[33] Follow-up interview 93 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (June 2014).
[34] Interview 100 with Hassan, legal aid attorney and former police official in Hargeisa, Somaliland (June 2014).
[35] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).
[36] Interview 45 with Aqil Zaki Yasim, aqil and senior government official in Hargeisa, Somaliland (July 2013).
[37] Mark Bradbury, Becoming Somaliland (Bloomington: Indiana University Press, 2008), 64
[38] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014). With no state legal institutions, all judgments and decisions of aqils were valid and “sanctioned by religious leaders.” Bradbury (2008), 103.
[39] Interview 124 with Najib, former senior government minister in Hargeisa, Somaliland (June 2014).
[40] Interview 18 with Bashir, university administrator in Hargeisa, Somaliland (June 2013).
[41] Interview 121 with Guleed, senior government ministry staff member in Hargeisa, Somaliland (June 2014).
[42] Interview 77 with Khadra, United Nations official in Nairobi, Kenya (July 2013).
[43] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013). 44
[44] Bradbury (2008), 78.
[45] Interview 124 with Najib, former senior government minister in Hargeisa, Somaliland (June 2014).
[46] International Crisis Group, Somaliland: Democratization and its Discontents. Africa Report No. 66 (Nairobi/Brussels: ICG, 2003) 9.
[47] Follow-up interview 68 with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
[48] Ibid.
[49] Bradbury (2008), 98.
[50] Follow-up interview 68 with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
[51] Follow-up interview 96 with Adam, independent researcher and consultant in Hargeisa, Somaliland (June 2014); see also Bradbury (2008), 124.
[52] Article 130.5 of the Constitution of the Republic of Somaliland, 2001.
[53] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).
[54] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[55] Ibid.
[56] Interview 89 with Sheikh Abdirahman, sheikh and senior government official in Hargeisa, Somaliland (June 2014).
[57] Follow-up interview 68 with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
[58] Ibid.
[59] Bradbury (2008), 133.
[60] Interview 124 with Najib, former senior government minister in Hargeisa, Somaliland (June 2014).
[61] Interview 103 with Garaad, political activist in Hargeisa, Somaliland (June 2014).
[62] Interview 99 with Shermarke, former university administrator and United Nations official in Hargeisa, Somaliland (June 2014).
[63] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).
[64] Interview 33 with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
[65] Interview 50 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (July 2013).
[66] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[67] Interview 6 with Rashida, lawyer in Hargeisa, Somaliland (conducted by telephone from London, England) (June 2013).
[68] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[69] Follow-up interview 93 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (June 2014).
[70] Interview 118 with Ismaciil, NGO executive director in Hargeisa, Somaliland (June 2014).
[71] Interview 89 with Sheikh Abdirahman, sheikh and senior government official in Hargeisa, Somaliland (June 2014).
[72] Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013).
[73] Interview 110 with Kahlil, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
[74] Somaliland Law No. 24 of 2003; see also Article 97.2 and Article 99.2 of the Constitution of the Republic of Somaliland, 2001.
[75] Article 2.3, 2.4, and 2.5 of Somaliland Law No. 24 of 2003.
[76] Interview 33 with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
[77] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[78] Interview 22 with Shahab, expatriate consultant in Hargeisa, Somaliland (June 2013).
[79] Follow-up interview 11 with Faris, professor and government official in Hargeisa, Somaliland (June 2013).
[80] Follow-up interview 64 with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
[81] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[82] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[83] Follow-up interview 11 with Faris, professor and government official in Hargeisa, Somaliland (June 2013).
[84] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[85] Interview 113 with Majed, legal aid attorney in Hargeisa, Somaliland (June 2014).
[86] Follow-up interview 64 with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
[87] Follow-up interview 11 with Faris, professor and government official in Hargeisa, Somaliland (June 2013).
[88] Follow-up interview 70 with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013).
[89] Interview 4 with Adnan, law graduate from Somaliland in London, England (June 2013).
[90] Interview 31 with Fadl, lawyer in Hargeisa, Somaliland (June 2013); Interview 113 with Majed, legal aid attorney in Hargeisa, Somaliland (June 2014); Interview 118 with Ismaciil, NGO executive director in Hargeisa, Somaliland (June 2014).
[91] Interview 41 with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
[92] Follow-up interview 64 with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
[93] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[94] Interview 4 with Adnan, law graduate from Somaliland in London, England (June 2013).
[95] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[96] Interview 31 with Fadl, lawyer in Hargeisa, Somaliland (June 2013).
[97] Interview 38 with Fatima, lawyer and aid worker in Hargeisa, Somaliland (July 2013).
[98] Interview 43 with Khadija, legal aid attorney in Hargeisa, Somaliland (July 2013).
[99] Interview 47 with Jamila, NGO executive director in Hargeisa, Somaliland (July 2013).
[100] Interview 20 with Akifah, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[101] Interview 100 with Hassan, legal aid attorney and former police official in Hargeisa, Somaliland (June 2014).
[102] Interview 126 with Dhahir, senior university administrator in Borama, Somaliland (conducted in Hargeisa, Somaliland) (June 2014).
[103] Follow-up interview 68 with Faisal, senior government official in Hargeisa, Somaliland (July 2013).
[104] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[105] Follow-up interview 64 with Khalid, lawyer and university lecturer in Hargeisa, Somaliland (July 2013).
[106] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[107] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).
[108] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).
[109] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[110] Interview 43 with Khadija, legal aid attorney in Hargeisa, Somaliland (July 2013).
[111] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
[112] United Nations Development Programme, “Quarterly Update – July 2005,” Report of UNDP Somalia, July 31, 2005, https://bit.ly/39RRP4x (accessed January 1, 2021).
[113] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[114] Interview 89 with Sheikh Abdirahman, sheikh and senior government official in Hargeisa, Somaliland (June 2014).
[115] Interview 66 with Aaliyah, independent researcher and former government attorney in Hargeisa, Somaliland (July 2013).
[116] Interview 74 with Ibtisam, legal aid attorney in Hargeisa, Somaliland (July 2013).
[117] Interview 10 with Tahir, NGO executive director in Hargeisa, Somaliland (June 2013).
[118] Interview 33 with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
[119] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
[120] Interview 119 with Abubakr, NGO finance manager in Hargeisa, Somaliland (June 2014).
[121] Interview 102 with Cabdelcaziz, government agency director in Hargeisa, Somaliland (June 2014).
[122] Interview 62 with Bilan, NGO executive director in Hargeisa, Somaliland (July 2013).
[123] Follow-up interview 96 with Adam, independent researcher and consultant in Hargeisa, Somaliland (June 2014).
[124] Interview 33 with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
[125] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[126] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
[127] Interview 12 with Daniel, expatriate lawyer and NGO program manager in Hargeisa, Somaliland (June 2013).
[128] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[129] Interview 19 with Jeff, aid worker and consultant in Hargeisa, Somaliland (June 2013).
[130] Interview 67 with Omar, senior government official in Hargeisa, Somaliland (July 2013).
[131] Interview 109 with Qasim, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
[132] Interview 35 with Cabdulmajid, senior government official in Hargeisa, Somaliland (June 2013).
[133] Follow-up interview 70 with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013).
[134] Follow-up interview 93 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (June 2014).
[135] Interview 19 with Jeff, aid worker and consultant in Hargeisa, Somaliland (June 2013).
[136] Interview 58 with Hussein, university lecturer and former judge in Hargeisa, Somaliland (July 2013).
[137] Interview 23 with Rafiq, expatriate consultant in Hargeisa, Somaliland (June 2013).
[138] Interview 30 with Zack, expatriate lawyer in Hargeisa, Somaliland (June 2013).
[139] Interview 33 with Salaam, NGO executive director in Hargeisa, Somaliland (June 2013).
[140] Interview 22 with Shahab, expatriate consultant in Hargeisa, Somaliland (June 2013).
[141] Interview 132 with Cabaas, senior government attorney and minister in Hargeisa, Somaliland (June 2014).
[142] Interview 110 with Kahlil, lawyer and government consultant in Hargeisa, Somaliland (June 2014).
[143] Interview 55 with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (June 2013).
[144] Nita Bhalla, “Somaliland Elders Approve ‘Historic’ Law Criminalising Rape,” Reuters, April 9, 2018, https://reut.rs/37KZsXS (accessed January 1, 2021).
[145] Interview 23 with Rafiq, expatriate consultant in Hargeisa, Somaliland (June 2013).
[146] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
[147] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).
[148] Interview 100 with Hassan, legal aid attorney and former police official in Hargeisa, Somaliland (June 2014).
[149] Interview 19 with Jeff, aid worker and consultant in Hargeisa, Somaliland (June 2013).
[150] Interview 100 with Hassan, legal aid attorney and former police official in Hargeisa, Somaliland (June 2014).
[151] Interview 122 with Xidig, government minister in Hargeisa, Somaliland (June 2014).
[152] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).
[153] Interview 32 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[154] Interview 49 with Babiker, university administrator and lecturer in Hargeisa, Somaliland (July 2013).
[155] Interview 81 with Warsame, lawyer and adviser to the Transitional Federal Government of Somalia (conducted in Nairobi, Kenya) (August 2013).
[156] Interview 32 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).
[157] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).
