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Saturday April 2nd 2011 at the Pride Inn Hotel, Nairobi
INTRODUCTION
The facilitator requested one of the participants to open the forum with a word of prayer after which the participants introduced themselves one after the other. The participants who comprised of intellectuals, members of the Somali Diaspora, civic society members and social workers took around ten minutes in familiarizing themselves among each other with some even exchanging contacts.
The facilitator had eloquently highlighted the forum agenda: Overview of the political situation in Somalia and the relationship between Shariah and democracy in the constitution making process in Somalia. He also reminded the participants to restrict their discussions to the agenda in order to achieve the discussion objectives.
GUEST SPEAKER’S PRESENTATIONS
The main panel guest, who is Shariah and law scholar, took the floor and gave his presentations on the two agenda:-
- A) Overview of the political situation in Somalia
In his presentation, he first expressed sympathy to the Somali populace living in Somalia who is facing the worst humanitarian crisis since time immemorial and he eluded this crisis to the political developments in the country. He however, called upon all internal and external stakeholders who are concerned and involved in matters of Somalia to extend their helping hand in the course of humanity by mitigating the large scale
sufferings. He saluted the international community and the Somali Diaspora for their humanitarian interventions.
The presenter described the political situation in Somalia as grave; one which is of conflictual and directionless. The presence of numerous local and foreign forces is the biggest threat to the security and political stability in Somali. The Transitional Federal Government’s (TFG) army aided by AMISOM troops and some Islamic militia group is a major military alliance battling with Al-Shabab militia in alliance with minor rebel groups. The Raskamboni army group and the Kenyan and Ethiopian forces that mainly carry surveillance on their respective border lines have also been cited as formidable forces in the militarization system prevalent in the Somalia political landscape. The guest speaker expressed his concern to this continued militarization as further antagonizing the divergent political spheres in Somalia.
Another pressing political development as observed by the panel guest is the transition dilemma since TFG’s term is due to expire on August, 2011. He pointed out that this matter had even caused a division between the executive and the legislative arms of the TFG. While the executive is rooting for a one year extension period, the legislature is of the view that to avoid any possible political vacuum, a three year extension period is necessary. On the other hand, some quarters of the international community are dissatisfied with theTFG’s political stakes in Somali and are flouting the idea to kick-start a new national reconciliatory effort aimed at forming a new government for Somalia. These divergent views continue to weaken the TFG and tilt the politics of the day.
The presenter had noted the emergence of different autonomous states as a new political development in Somalia. The trend of creating many autonomous states is gaining momentum and some see this as only the short-term political solution as the goal of achieving national political order in the greater Somalia remains elusive.
The creation of more political parties is a recent phenomenon in the Somali politics. Some parties formed inside Somalia and others formed in the Diaspora and a notable example is the Hiil Qaran party. But what remains a guess to everyone is what political contributions these new political parties can make to the complex and dynamic political paradigm in Somalia.
After the guest speaker made his presentation on the first agenda, that is, overview of the political situation in Somalia, the facilitator welcomed questions, observations and comments from the other participants. One participant expressed his pessimism in the political situation in Somalia and even doubted whether Somalia would ever again rise to its feet. Another participant observed that agreement between the legislature and the executive arms of the TFG is a crucial step in avoiding further political disintegration and he was of the view that the TFG be given ample transitional period as fresh national reconciliatory efforts are being embarked on. A participant, who claims to have travelled with the Somali national speaker in one instance, felt that the difference between the president and the speaker are irreconcilable.
The Somali opinion leaders were cautioned not to see the views of the legislature, the executive and the international community as only the best options in unlocking the transitional dilemma .He called upon the Somali leadership to come up with new strategies that would stir political progress during and after the transition period.
Another participant expressed her concerns in the manner in which the TFG is fully dependent on the advice, policies, decisions and solutions of the international community. According to her, as this is a Somali problem, a homegrown solution is the most appropriate and the international community should be seen as only development partners.
The participant squarely blamed the Somali intellectuals for failing to give direction and assert their presence in the political unfolding in Somalia while leaving the current leadership to mislead the people.
There is a political vacuum because the TFG is confined to few parts of Mogadishu and therefore the need to start fresh national reconciliatory meetings while not extending the TFG’s term after August 2011.
Having exhausted the discussion on the first agenda, the facilitator once again welcomed the guest speaker to continue with his presentation on the next agenda:-
- B)
The presenter underpinned the significance of having this topic frequently floated for debate in the wake of the resurgence of Islamic based political doctrines in the modern Somali political mainstream.
He started his presentation with a definition of constitution as a set of fundamental principles or established precedents according to which a state or other organization is governed. He reminded the participants that there are many types of constitution and there is no one model for achieving a perfect document for a democratic foundation.
He briefly described Shariah as the Islamic law based on general principals which are universally valid and flexible laws that keep on changing with time and environment. He gave a preview on the relationship between the Shariah and constitution in some of the Islamic states. In these states, their constitution stipulates that Islam is the religion of the state and the Shariah is the source of all legislations .No written law can contravene the Shariah.
Divinity, morality, practicability, humanity, integrity and comprehensiveness are the major characteristics of Shariah.
After the brief mention of constitution and Islamic Shariah, the panel guest noted that there is no accepted universal definition of democracy. However, equality and freedom remained the outstanding features of democracy throughout the ages. Free electoral system, access to power, equality, protection of human rights, citizen responsibilities and values of tolerance, cooperation and compromise are what collectively define democracy. Democracy is an evolving phenomenon which is shaped by societal values and different societies perceive democracy differently.
On the relationship between the Shariah and democracy in constitution making, the speaker cited the two can fuse successfully and provide gainful ingredients in constitution making process. He added that rationality is the constant denominator that defines the mutual relationship of the two.
He explained that the Shariah is primarily based on the Quran and the prophet’s tradition and constructive democratic values are enshrined in these two Shariah source; thus Shariah cordially relates with democracy.
In the modern Islamic states, the positive relationship between the Shariah and democracy provide fundamental guidelines to these nations’ constitutions. He reminded the panel that the challenges are not a bout the compatibility between the Shariah and democracy in constitution making but the leadership who is entitled to make the constitution. Leaders who have unbiased political, regional and tribal mind set and that are scholarly in Shariah interpretations ought to spearhead the constitution making process.
The guest speaker having completed his presentation, the facilitator invited comments, questions and observations on the presentation while opening the forum for a brainstorming session on constitution, democracy, Shariah and the relationship between Shariah and democracy in constitution making process with reference to Somalia.
A participant thanked the guest speaker for his brief, educative and organized presentations. Concerning matters of the relationship between democracy and Shariah in constitution making, he argued that the Somalis are of two different views. A group that sees Islam as a solution in the constitution making mess since Islamic Shariah will provide essential components in the new document and another group that express the fear that the introduction of Shariah based manifestations in constitution making process will complicate matters. He however suggested that just like other modern Islamic states, democracy and Shariah can have a meaningful relationship and would result to the production of a well rounded supreme document. He regretted that the western perspective of Shariah which they see as undemocratic, rigid and oppressive tend to influence even some quarters of the Somali leadership who develop a phobia once the Shariah is mentioned . Unfortunately, this western perspective is solely derived from the corporal punishments in the Shariah and disregards the broader Shariah teachings. All universal laws that are idolized have their share of corporal punishments as well.
Another participant reminded the panel the fact that the guest speaker had mentioned the lack of an accepted definition of democracy, it is imperative to remember that democracy should be nurtured in line with local values rather importing foreign democratic values which are inconsistent with the Somali culture, values and traditions.
Sensing that the debate was turning stormy and longer, the facilitator intervened and employed topical questions in order to guide the participants to restrict their discussions on the forum agenda. His first question was:
- 1) Do the Somalis need a constitution now?
A participant felt that the Somalis don’t need a constitution at the moment and it is not possible to even draft and implement one in the current scenario. Her reasons are that Somalia is now balkanized with no security and political stability, thus unfavorable condition for constitution making process.
However, another participant differed with the above notion and while acknowledging balkanization as a major challenge in constitution making, expressed the need for having a supreme law for the country. She cited the current efforts of the Independent Federal Constitution Committee (IFCC) in drafting a constitution for Somalia. Although constitution making would have been aided by the involvement of high state organs that can facilitate the whole process, but even without these organs, she argued that Somalia is desperate for a draft law which she believes is a foundation for peace, stability and development.
The need to have a constitution for Somali gained more support noting that existing draft laws in the autonomous states, the TFG charter, the Carta (Djibouti’s capital city) charter and the Somali constitutions of 1960 and 1990 ought to be reviewed altogether and act as a baseline of drafting the new constitution.
One of the scholars who took part in the drafting of the Somali constitution of 1990 gave a preview of the constitution making process at that time. He reported that pivotal source of that constitution was the Shariah. Currently working withIFCC in drafting the constitution the scholar bursted the audience into laughter when he admitted they have intentionally omitted the use of the word “democracy” in the current draft because the mere mention of the term, to some people, connotes many interpretations like accommodating the same sex marriage. The intellectual culminated the discussion on the first question by calling all stakeholders in the Somali political equation to give a chance to the making of a democratic constitution that doesn’t contravene the Islamic Shariah.
2) What is Islamic Shariah in the Somali Context?
It was observed that the Somalis being predominantly Muslims are well conversant with the Shariah as it form the basis for their customary laws. However, contemporary political and social forces tend to tilt the perspective of the Shariah among the Somali populace. This may be due to the fact that more religious education based on different schools of thought gets infiltrated into Somalia and thus lead to different perspectives of Shariah in the Somali context
The emergence of “Islamized” anti Islamic global phenomena like terrorism complicate matters as far as Shariah in the Somali context is concerned. Some even believe that the Quran can act as the only supreme law in Somalia but others argue the Quran just provide the overall framework but can not be a constitution by itself since it does not provide the nitty-gritty of a constitution such as who, when and how to elect peoples’ representatives.
Another important aspect to note is that the Shariah is not fully observed in the Somali non-state actors because it is just recently that guanine Islamic teachings are taking root in Somalia.
A participant blamed the Somali clerics for only invoking the Shariah teachings on matters of family, personal affairs and dressing codes while back sitting important national affairs like peace, stability and governance. The clerics fail to utilize the Shariah teachings in the efforts to restore sanity in Somalia’s political turmoil.
CONCLUSIONS
The majority of the panel was well acquainted with the current political situation in Somalia and they expressed their concern on the scale of the humanitarian crisis.
The militarization of Somalia, the transition dilemma, the emergence of new autonomous states and the creation of more political parties were highlighted as the major contemporary political developments in Somalia.
The possibility of harmoniously fusing basic democratic principles and the Islamic Shariah in constitution making process was adequately voiced out.
The underlying tone of the panel discussion was the need to have a people driven constitutional dispensation process that would result to a democratic and Shariah-sourced constitution for Somalia. Although it was wholesomely admitted that it is a herculean task to draft a constitution in the current social-political environment in Somalia, it was however, believed that a good document would not only restore political normalcy in Somalia but also lay a foundation for general social and economic development.
Constitution making process was seen as an urgent priority and respected secular and religious scholars devoid of any bias ought to shoulder this mandate. A Shariah Council comprised of educated jurists of both gender should be established to provide advisory services to the independent constitution drafting and implementing bodies.
RECOMMENDATIONS
The panel commended National Civil Forum (NCF) for organizing such a valuable forum and NCF was requested to facilitate another forum to engage the Somali intellectuals with Independent Federal Constitution Committee on Consultation Draft Constitution (CDC) to discuss constitution making process in Somalia.
NCF was also called upon to broaden the participatory edge in their civic education programs by inviting youth and women opinion leaders in future constitution making debate.
The panel asked NCF in partnership with other non-partisan local and international organizations to speedily infuse and disseminate pragmatic ideas that come out from such consultative forums into the influential political decision making agencies in Somalia.
Because of the intricate relationship between Shariah and democracy in constitution making in Somali, the panel cautioned all stakeholders to avoid the inclusion of elements into the draft that can result to a theocratic constitution. In particular they expressed their fear of a constitutional resemblance to the Iranian one which has a provision for a supreme council; a condition which they term would be a recipe for a chaos in Somalia.