Banditry (al-ḥirāba)

The minimum requirement for the ḥadd crime of banditry, al-ḥirāba,¹⁹⁷ outlined by the classical jurists, is to show a drawn weapon in order to frighten people travelling on a public road and to prevent them from continuing on their journey. In addition, the offenders have to be superior in strength so that the victims cannot escape. If property is taken and/or the victims are killed, the punishments will be more serious. According to all the legal schools except from the Māikī school, the punishment is banishment or imprisonment until

repentance. If the offence consists of taking away property with a minimum value, niṣāb, equal to the requirement for theft, the culprits will be punished by cross-amputation, right arm

195 Interview with “Abu Mahmod” conducted by the author in Nairobi, October 2010.

196 Ahmed ibn Al-Misri, Reliance of the Traveller: Revised Edition: The Classical Manual of Islamic Sacred Law ‘Umdat al-Salik’ by Ahmad ibn Naqib al-Misri (d. 769/1368), Nuh Ha Mim Keller (ed.), (Beltsville: Amana Publications, 1994), p. 615.

197 Three terms are used interchangeably in the fiqh literature about this crime: Al- ḥirāba meaning armed robbery, al-sariqa al-kubrā meaning the great theft, and qaṭ’ al-tarīq denoting high way robbery. See: El-Awa, Punishment in Islamic Law: A Comparative Study, p. 7.

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and left foot. In cases of murder, the offenders will be killed. If both murder and plunder has taken place, the bandits will be killed and thereafter crucified.¹⁹⁸

When it comes to banditry cases tried in the qāḍīs court of al-Shabaab, I am only aware of eight court cases, with a total number of 15 amputations between June 2009 and April 2011: 13 cross-amputations, one amputation of the right arm, and only one of the left foot.¹⁹⁹ Although the information concerning the cases is limited, there seems to be some correspondence between the accusations and the punishment enforced: robbery in terms of holding-up and stealing shall, according to classical doctrine, be punished with amputation of the right arm and left foot. In five of the eight cases, the al-Shabaab qāḍīs are reported to have announced that the convicts have admitted to the crimes in front of the court.²⁰⁰ However, as already mentioned above, the story of “Roble”, one of four boys who were cross-amputated in June 2009 in Mogadishu, and likewise, the Ibrahim brothers who faced cross-amputation in October 2009 in Kismayo, suggest that one should not necessarily regard claimed admissions to be true.

The story of “Roble” is illustrating: he was arrested in the end of May in Mogadishu and imprisoned. On June 22, 2009 after more than three weeks in prison he was brought to the square at Maslah, an old military parade ground, on the outskirts of the animal market in Mogadishu, together with three other boys. Seated in front of them were several top leaders of al-Shabaab as well as one of the high ranking qāḍīs named Dahir Ga’may. As “evidence” this chief qāḍī only showed some pistols and mobile phones to the huge crowd gathered there and announced that all four were spies and bandits that according to sharī’a law had to be cross-amputated. In addition, “Muhtab”, one of my other informants who was present during this trial claims that the qāḍī announced that the accused already had admitted to the crime.²⁰¹ Neither “Roble” nor the other alleged offenders were given the opportunity to speak. Three days later, at the same square, the cross-amputation of the four youngsters was executed without any pain relief. Then, after four nights, a leading al-Shabaab official, Fu’ad Shangole, came to the house where the boys were held in custody and claimed that the legs were

amputated too low. Using a plumber’s saw he cut off their legs three fingerbreadths up from the stump without giving them any kind of pain relief.

198 Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, pp. 57-58.

199 See Appendix 4.

200 Information regarding the last three cases reported is scarce.

201 Interview with “Muhtab” conducted by the author in Nairobi, October 2010.

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Besides the amount of suffering that this punishment entails, there are several striking features about this case which makes it seem more like a show than a proper trial. Firstly, the public was reportedly ordered to come and witness the punishment of the “bandits and spies”

or else face lashing themselves.²⁰² Secondly, the qāḍīs are reported to have announced that the four boys had admitted to the crime. However, contrary to the qāḍīs’ claim, “Roble” insists that he never admitted to any crime. Thirdly, the circumstantial evidence, the mobiles and pistols which had allegedly been stolen, would of course not, according to classical doctrine, have been valid in a banditry case, and, in addition, this “evidence” would anyway not have been necessary if the accused had actually admitted to the crime, as the qāḍīs claimed.

Therefore, the mobiles and pistols gave a dramatic twist to the trial and helped convince the public, rather than serving as de facto evidence. Fourthly, the accused were not given a chance to defend themselves. Fifthly, since the boys were accused of both robbery and espionage, one would expect them to face the type of punishment corresponding to the most serious accusation, namely capital punishment rather than cross-amputation, as death sentence seems to be the normal punishment for espionage (discussed below) among the al-Shabaab qāḍīs as well as the prescribed punishment for espionage according to classical doctrine. ²⁰³

My view of this trial as a show case finds additional support in the announcement made by the official al-Shabaab spokesman, Ali Mohamed Rage, to the local journalists who were present at the square before the execution. He explained that this punishment was “a warning to all thieves”, and that “if they [the journalists] are caught red-handed in similar circumstances, they will face amputation”.²⁰⁴ As such, this case, and probably some or all of the other similar cases, could therefore give an indication of al-Shabaab’s crime policy. They want to use punishment as a crime preventive measure and occationally stage large public trials to set an example in order to deter others from committing similar crimes. However, this appears to be only a part of the explanation. As “Roble” points out, the court case was indeed set up to punish the accused, although, not for espionage and robbery. He believes that he was punished because he refused to join al-Shabaab and instead prefered to focuse on his school

202 Xian Rice, Somali schoolboy tells of how Islamists cut off his leg and hand, The Guardian, (20 October 2010), http://www.guardian.co.uk/world/2010/oct/20/somali-islamists-schoolboy-amputation-ordeal, [29.10.11].

203 Espionage will be discussed below.

204 BBC News, Somalis watch double amputations, BBC, (25 June 2009), http://news.bbc.co.uk/2/hi/africa/8118306.stm, [14.09.11].

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work. Similarly, as already noted, the Ibrahim brothers make quite similar claims, asserting that they were tried and punished for political reasons.²⁰⁵