Refounding Somalia: Constitution and Islam

Published on Pambazuka News, by Abdulwahid Sheikhosman Qalinle, May 3, 2012.

The draft constitution is a considerable improvement from the Transitional Federal Charter. However, there are serious flaws in the draft which would make the operation of the system of government difficult and controversial … //

… ROLE OF ISLAM IN THE NEW POLITICAL DISPENSATION:

On April 18, 2009, the Somali parliament voted unanimously to adopt Shariah law. Article 8 of the Transitional Federal Charter reads, in part, “(1) Islam shall be the religion of the Somali Republic. (2). The Islamic Shariah shall be the basic source for national legislation”.  

Furthermore, the 2010 Draft Constitution, currently under review, essentially proclaimed Somalia as an “Islamic state” with a national religion. It obligates the Somali judges to rule and adjudicate in accordance with the provisions of Islam and jurisprudence of Shariah law as, under the Draft, no law could be “contrary to the sacred religion of Islam.” The role of religion in the new constitution is, therefore, bound to be contentious. This represents significant departure from the language of the 1960 constitution, which merely stated that “Islam shall be the religion of the State” rather than requiring all laws to be brought in conjunction with the Islamic law and declaring the supremacy of Shariah.

THE QURAN IS NOT A CONSTITUTION:

The Quran is not a constitution in the generic sense. It is by definition and substance greater than a constitution. The religious clerics who proclaim, “Quran is our constitution!” misread the very essence of the Quran. A constitution is a flexible device, which organizes and shapes diverse political and legal systems. It is used to enshrine the broad principles on which a governmental system is to operate, including the rights and responsibilities of all levels of government; the description and role of key institutions at central and local levels; and, the basis on which detailed rules may be established or changed. It can be amended or abrogated.

On the other hand, a Qur’anic text cannot be altered or abrogated because of the Qadiyu Thubuut (absolutely authentic origin) principle. It can only be interpreted where its texts are vague, Zaniyu al Dilalah. An example would be verses describing acceptable commercial practices. These may be interpreted in light of relevant sources and materials. In essence, the Qur’an is more expansive than a constitution with respect to its functions and characteristics. Now, the belief that Somalia needs no unifying document besides the Quran misunderstands the function of the constitution in establishing a modern state and, moreover, runs contrary to the principles of Al Siyasah Al Shari’yah and Ijtihad (unprecedented doctrinal development) as articulated by classical Islamic jurists. Simply put, Somalia needs a national constitution to formalize its political choices in matters of government while, at the sometime, keeping Islam as the conscience of both the community and the constitution.

SOMALI LEGISLATURE AND INSTITUTIONALIZATION OF IJTIHAD: … //

… BRIEF COMMENTS ON THE DRAFT CONSTITUTION:

The efforts to establish a constitutional republic in Somalia are admirable. These efforts, however, must be diligent, effective, and thoughtful. The effectiveness of a new constitution should, in my view, be judged by: a) the level of participation by the public and b) legitimacy of the process. There is no credible evidence to suggest that the views of the people throughout the country reached the Independent Commission for the Constitution and Federal Affairs (IFCC) in any meaningful manner or were considered by it during the drafting process, the hilarious minute-long commercial on Universal TV notwithstanding. Further, based on my preliminary research, the IFCC seems to have been under intense pressures to meet strict deadlines. Regardless, I am not aware of any serious efforts on the part of the IFCC to consult and seek wide scale public participation in the Diaspora as well. (Reportedly, less than 100 people attended a recent TFG sponsored constitutional review session in Minnesota, a state which is home to an estimated 70 thousand Somalis) … //

… THE PREAMBLE // SHARIAH & SOVEREIGNTY (CHAPTER 1) ARTICLE 1 – 12 … // … INDEPENDENT COMMISSIONS (CHAPTER 11) … //

… (full long text).

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