News

Drafting Somalia's Constitution Opens Debate on Religion, Law

Somalia women celebrate as they welcome the implementation of Islamic Sharia law at Konis stadium, in Mogadishu, Somalia, FILE April 19, 2009.
Somalia women celebrate as they welcome the implementation of Islamic Sharia law at Konis stadium, in Mogadishu, Somalia, FILE April 19, 2009.

This is Part Four of a seven-part series on African constitutions

Continue to Parts:     1 / 2 / 3 / 4 / 5 / 6 / 7


In a country torn apart by civil war, piracy and terrorism, many hope a new constitution will bring some amount of stability to Somalia.

Since the fall of the last government in 1991, a succession of interim governments have failed to establish rule of law. Millions of people have been displaced or exiled by fighting and famine.

Somalia is now under pressure to produce a draft of a new constitution by April 20, according to the guidelines agreed to in the "Roadmap" to end the donor-backed transitional government and to hold new elections this year.

Prime Minister of the Transitional Federal Government of Somalia Abdiweli Mohamed Ali gestures during a press conference at The Foreign and Commonwealth Office in London, FILE February 23, 2012 .
Prime Minister of the Transitional Federal Government of Somalia Abdiweli Mohamed Ali gestures during a press conference at The Foreign and Commonwealth Office in London, FILE February 23, 2012 .
Prime Minister Abdiwelli Mohammed Ali pleaded with participants at a constitutional conference in February to find a solution to the few challenges remaining.

"Everything in our lives has been and continues to be in transition," he said in prepared remarks at the talks in Garowe. "To me this constitutional process represents the possibility of a new beginning, the possibility for the Somali people to say 'enough' to transitions."

Balancing Act

But crafting a one-size-fits-all constitution for a society deeply divided along clan and family lines, with no allegiance to a central authority, is no easy task. The key is to find a balance between civil law, customary law and Islamic Sharia law.

Because Somalia is wholly Muslim, many agree that elements of Sharia, based on the teachings of the Quran, must serve as a basis for the constitution.

"It's very well and fine to say Sharia is a source of law," said J. Peter Pham, Director of the Michael Ansari Africa Center at the Atlantic Council in Washington D.C. "It's a great slogan, no one is against it in Somalia by and large."

But, Pham points out that Somali culture has always respected the distinction between the "spearman and the priest," - the separation of traditional and religious law. He says tradition usually takes precedence.

"If if was a matter that touched on customary law, dealt with major property, murder, rape, you held a Gurti - an assembly of elders - and they looked at what the precedents were and based on what people had always done, they issued rulings," he said.

Religious law as interpreted by clerics, he says, would traditionally only be used to settle domestic disputes, including issues of marriage and family.

Even during the time of the Islamic Courts Union around 2006, when a coalition of Sharia courts ruled over parts of southern Somalia, Pham says traditional law was more commonly used to settle property and criminal matters.

If Sharia is imposed in Somalia as strictly as it is in some other Muslim countries, he says, "you're begging for trouble."

Red Lines

The United Nation's role in the drafting process has irked some Somali religious leaders, who fear new rights put in the text will contradict the tenets of Islam.

April Powell-Willingham, head of the joint constitution unit at the U.N. Political Office for Somalia (UNPOS) and U.N. Development Program for Somalia (UNDP) says the perception that the United Nations has commandeered the drafting process to force its own principles onto the Somali people has put the U.N. in a "double-bind."

"We need to keep certain values at the forefront - inclusivity, representation and respect for universal norms," she said. "At the same time, however, the U.N. is accused of having too heavy a footprint. So it’s a very difficult position and a rather circular discussion."

Some attempts to insert an interpretation of Sharia that prohibits women from serving in top elected positions are also causing tension.

Powell-Willingham says the debate centers on a section of the 2010 Consultative Draft Constitution (CDC) that guarantees political rights for women.

"There is some discussion about removing article 1 section 4 of the CDC, which ensures that women shall be represented in all elected and appointed positions at all levels and branches of government, a protection which prohibits women from being banned from public service writ large, but particularly from being banned from serving at the highest levels of government, for instance, as president, prime minister or as judges," she said..

Powell-Willingham says the United Nations is trying to ensure the constitution protects internationally recognized human rights. She says there are a number of "red lines" that the U.N. has drawn - including the death penalty.

Sheikh Abdirashid Ali Noor, a cleric in Nairobi, Kenya, says it is possible for Sharia and civil law to work side by side, only if there are limits.

"It gets a little complicated since democracy gives people excess freedoms, for example, to homosexuals," he said. "If you look at that from a moral point of view it's not good, and the population sees this as too much freedom."

"It is Not Our Constitution"


In drafting the new document, the United Nations says it is drawing on Somalia's past and present constitutions. It is also referencing documents from around the world, including South Africa, Kenya, Indonesia, Malaysia and Spain, adding to the perception that the constitution is not fully "Somali."

"The fact is that in a deeply globalized world, it is often true that Constitution making and democratization is no longer solely a national exercise," said Powell-Willingham. "There are multiple local, national, regional and international influences at play at any given time."

The U.N.'s role is limited to providing technical support and advice.

"We are not in the business of drafting and imposing constitutions on anyone," she stated.

Ibrahim Farah, a Somali analyst and lecturer at the University of Nairobi says the U.N. is not to blame for its heavy role.

"We can forget about the rhetoric a little bit and agree with the concept that the United Nations is good intentioned and that they just want to help Somalia," said Farah. "But because of the lack of visionary nationalistic Somali leadership then, there has been this vacuum, and that's why UNDP ended up writing one for Somalia."

He blames an absence of political will for the Transitional Federal Government's failure to draft a constitution since the TFG was founded eight years ago.

He argues there are plenty of homegrown constitutions to draw on. He notes the autonomous region of Somaliland has its own constitution; Puntland and Galmudug are both working on their own. Even the al-Qaida-linked militant group al-Shabab has a charter of principles.

A National Constituent Assembly of no more than 1,000 members, of which 30 percent will be women, will vote on the draft in May.

But Ibrahim Farah says the assembly's approval might not mean very much to Somali people who feel like they have been left out of the process.

"Even if this 1,000 men and women constitution assembly being put together in the next month or so endorses it," he said. "It is not our constitution and it's never going to be."

This forum has been closed.
Comment Sorting
Comments page of 2
    Next 
by: Sulle
April 13, 2012 12:08 PM
Puntland was not built in few days. Let us open our minds and accept to have some kind of constitution to start with to make amendments by the new parlement when needed backed by a stronger government with accountable law enforcement. We have nothing now whatsoever. So do not be stupid to see only around you but farther. We have to start somewhere sometime. Somalis are good at judging every thing by the day.

by: Sulle
April 13, 2012 11:59 AM
Puntland was not built in few days. Let us open our minds and accept to have some kind of constitution to start with to make amendments by the new parlement when needed backed by a stronger government with accountable law enforcement. We have nothing now whatsoever. So do not be stupid to see only around you but farther. We have to start somewhere sometime. Somalis are good at judging every thing by the day.

by: Abdulrahman
April 07, 2012 10:19 PM
this constitution is contradicting each ather .. look! article 1 section 4 says women can be president ,prme..or Judges.....why the are saying Sharia is a source of Low...diffidently 2 Sharif's 2,Farole's(Farole and Abdulwali) and Mahiga's Constitution cannot represent for all Somalis. diffidently,we are not going to accept and will Never...Never Nevert, instead of this constitution we are ready to die for all somalian

by: conservative faminist
March 30, 2012 12:26 PM
it is amazing how people are knee jerking about a sopposed constitution for a place and people that have none at the moment.

by: cabdiraxman
March 30, 2012 12:01 PM
We will not accept the new Colonialism backed by ethiopia and Kenya

by: Real Puntlander
March 30, 2012 10:28 AM
We will never accept the Mahiga's Constitution, Accepting and adopting of this constitution will give a big hand to Shabab Militias.

by: Caaqilka somaliyed
March 30, 2012 8:35 AM
we are not going to accept and will not, diffidently instead of this constitution we are ready to die for all somalian

by: SAACID
March 30, 2012 7:52 AM
oh, no we somali will not take this constution because of we don't have in our religion rights for guys.

by: Bashir
March 30, 2012 2:16 AM
somalia will not Take this kind of constitiution, which is bassed circulars, as you aware somali people are 100% muslim and very brave to protect their religion and will offer to die to seek their feith

by: aaren
March 30, 2012 12:32 AM
Puntland, Galmudug, President Sharif, Suna wajamea and speaker cannot represent for all Somalis. For last 20 years they were ruling Somalia and they could not make peace.
Comments page of 2
    Next 

Featured Videos

Your JavaScript is turned off or you have an old version of Adobe's Flash Player. Get the latest Flash player.
Turkey's Main Opposition Party Hopes for Election Breakthroughi
X
May 22, 2015 10:23 AM
Turkey’s main opposition Republican People’s Party has sought an image change ahead of the June 7 general election. The move comes after suffering successive defeats at the hands of the Islamist-rooted AK Party, which has portrayed it as hostile to religion. Dorian Jones reports from the western city of Izmir.
Video

Video Turkey's Main Opposition Party Hopes for Election Breakthrough

Turkey’s main opposition Republican People’s Party has sought an image change ahead of the June 7 general election. The move comes after suffering successive defeats at the hands of the Islamist-rooted AK Party, which has portrayed it as hostile to religion. Dorian Jones reports from the western city of Izmir.
Video

Video Europe Follows US Lead in Tackling ‘Conflict Minerals’

Metals mined from conflict zones in places like the Democratic Republic of Congo are often sold by warlords to buy weapons. This week European lawmakers voted to force manufacturers to prove that their supply chains are not inadvertently fueling conflicts and human rights abuses. Henry Ridgwell reports from London.
Video

Video Class Tackles Questions of Race, Discrimination

Unrest in some U.S. cities is more than just a trending news item at Ladue Middle School in St. Louis, Missouri. As VOA’s Kane Farabaugh reports, it’s a focus of a multicultural studies class engaging students in wide-ranging discussions about racial tensions and police aggression.
Video

Video Mind-Controlled Prosthetics Are Getting Closer

Scientists and engineers are making substantial advances towards the ultimate goal in prosthetics – creation of limbs that can be controlled by the wearer’s mind. Thanks to sophisticated sensors capable of picking up the brain’s signals, an amputee in Iceland is literally bringing us one step closer to that goal. VOA’s George Putic reports.
Video

Video Afghan Economy Sinks As Foreign Troops Depart

As international troops prepare to leave Afghanistan, and many foreign aid groups follow, Afghans are grappling with how the exodus will affect the country's fragile economy. Ayesha Tanzeem reports from the Afghan capital, Kabul.
Video

Video Poverty, Ignorance Force Underage Girls Into Marriage

The recent marriage of a 17-year old Chechen girl to a local police chief who was 30 years older and already had a wife caused an outcry in Russia and beyond. The bride was reportedly forced to marry and her parents were intimidated into giving their consent. The union spotlighted yet again the plight of many underage girls in developing countries. Zlatica Hoke reports poverty, ignorance and fear are behind the practice, especially in Asia and Africa.
Video

Video South Korea Marks Gwangju Uprising Anniversary

South Korea this week marked the 35th anniversary of a protest that turned deadly. The Gwangju Uprising is credited with starting the country’s democratic revolution after it was violently quelled by South Korea’s former military rulers. But as Jason Strother reports, some observers worry that democracy has recently been eroded.
Video

Video California’s Water System Not Created To Handle Current Drought

The drought in California is moving into its fourth year. While the state's governor is mandating a reduction in urban water use, most of the water used in California is for agriculture. But both city dwellers and farmers are feeling the impact of the drought. Some experts say the state’s water system was not created to handle long periods of drought. Elizabeth Lee reports from Ventura County, an agricultural region just northwest of Los Angeles.
Video

Video How to Clone a Mammoth: The Science of De-Extinction

An international team of scientists has sequenced the complete genome of the woolly mammoth. Led by the Swedish Museum of Natural History in Stockholm, the work opens the door to recreate the huge herbivore, which last roamed the Earth 4,000 years ago. VOA’s Rosanne Skirble considers the science of de-extinction and its place on the planet
Video

Video Blind Boy Defines His Life with Music

Cole Moran was born blind. He also has cognitive delays and other birth defects. He has to learn everything by ear. Nevertheless, the 12-year-old has had an insatiable love for music since he was born. VOA’s June Soh introduces us to the young phenomenal harmonica player.

VOA Blogs