From drug dealing to speeding

The terms “ta’zīr” and “siyāsa” may not be part of daily usage in the al-Shabaab courts as my informants do not refer to them. Nevertheless, I choose to apply them since they are implicitly in use in the al-Shabaab court system in terms of being a distinct category constituting all other criminal offences than murder, bodily harm and the ḥadd crimes. In contrast to these categories where the al-Shabaab qāḍīs to a great extent seem to apply the puishments that are prescribed in the doctrines of fiqh, the residual offences seem to be punished according to the qāḍī’s discretion, allowing him to use a wide range of puishments, such as fines, lashing, imprisonment or banishment.

Although there are several cases related to drug dealing, most of my material consists of one or two cases of a wide range of offences e.g. releasing sensitive information about al-Shabaab, watching sex movies and football, speeding and accusations of espionage.²²³ Due to the limited number of cases, and particularly similar kind of cases, it is difficult to discover any general trends or consistency regarding related cases. However, the proceedings in this broad category of cases seem at least to follow the same pattern: the accused is arrested by the Ḥisbah either on suspicions stemming from the Ḥisbah themselves or by another civilian. The accused stays in prison for some days or weeks, often exposed to torture, mostly beating, until the accused is brought before the court. During the trial the prosecutor, mostly a

representative of the Ḥisbah, presents evidence in support of the charge. After hearing what the accused has to say in his defense, the qāḍīs render a verdict, which in the majority of cases is enforced almost immediately. There are two major trends where evidence is concerned.

Either one or several witnesses support the accusations, or the court is presented with

circumstantial evidence, for example objects related to the alleged crime. An example of the first trend is the“Abu Mohamed” case, tried in the provincial court at the Bakara market, Mogadishu. “Abu Mohamed” was accused of speaking to foreign al-Shabaab fighters despite having been warned not to while giving them lessons about the Qu’rān. During the trial the prosecutor brought one witness, one of the foreign students of the class who testified that he

222 Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, pp, 8-10, 67-68; Vikør, Mellom Gud og stat: Ei historie om islamsk lov og rettsvesen, pp. 181-189;

Vogel, Islamic Law and Legal System: Studies of Saudi Arabia, pp. 247-250.

223 See Appendix 1.

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had heard “Abu Mohamed” trying to speak to them. He was sentenced to bring back some young refugee girls he had previously helped to flee in order for al-Shabaab to marry them to their young fighters.²²⁴ The other trend is illustrated by the “Ahmad” case, tried in a court in Bu’ale, Lower Shabelle, where “Ahmad” was accused of watching sex videos on his mobile phone. As evidence the Ḥisbah presented his mobile phone containing the pornographic materal, whereupon he was sentenced to 50 lashes and a fine of 2000 USD.²²⁵

Since classical fiqh doctrines give few restrictions when it comes to evidence in ta’zīr/siyāsa cases, my material show few- if any- clear breaches with classical jurisprudence in these cases. There are even some court cases in which the accused is released because the qāḍīs find the evidence insufficient. An example is the “Kadra Ahlo” case, tried in

Mogadishu. “Kadra Ahlo” was accused of hiding and refusing to return a small bag which had been thrown into her shop by some Ḥisbah officials. In court the Ḥisbah officials said that they didn’t need any witnesses, as they were absolutely certain that they had thrown the bag into the shop. “Kadra Ahlo” explained that she had seen the bag, but due to ongoing fighting between al-Shabaab and the TFG in the area at that time, she had been afraid that it might contain explosives and thrown the bag away. The qāḍīs decided to release “Kadra Ahlo”

because the Ḥisbah officials had failed to tell her that the bag was their property, a fatal mistake especially when taking the uncertain situation in Mogadishu into consideration.²²⁶

The punishments in ta’zīr/siyāsa cases vary from fines, lashing and imprisonment to banishment and expropriation of property. None of the respondents have said anything about corporal punishment except lashing, which seems to be the preferred form of punishment in casese related to drug dealing:

1. “Ahmad”- Bu’ale, Middle Shabelle - 50 lashes and 2000 USD for selling hashish.²²⁷ 2. “Haliima” – Kismayo, Lower Jubba - 40 lashes and two weeks in jail for selling

khat.²²⁸

3. “Yusuf” – Beledweyne; Hiiran - 80 lashes, five months in jail and expropriation of his shop to al-Shabaab for selling hashish.²²⁹

4. “Abdullahi Ali” – Mogadishu - 40 lashes and three months in jail for selling hashish.²³⁰

224 Interview with “Abu Mohamed” was conducted by the author in Nairobi, October 2010.

225 Interview with “Ahmad” conducted by Mohamed and Abdow in Nairobi, November 2010.

226 Interview with “Kadra Ahlo” conducted by Mohamed and Abdow in Nairobi, November 2010.

227 Interview with “Ahmad” conducted by Mohamed and Abdow in Nairobi, November 2010.

228 Interview with “Haliima” conducted by Mohamed and Abdow in Nairobi, February 2011.

229 Interview with “Yusuf” conducted by Mohamed and Abdow in Nairobi, February 2011.

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5. “Ali Mohamad” – Kismayo, Lower Jubba - 40 lashes and four months in jail for selling hashish.²³¹

According to the fiqh prescriptions of the legal schools, except the Māikī school, the number of lashes should not exceed the fixed number of lashes of the ḥudūd punishments.

However, there is some disagreement concerning this: as some claims that the maximum is 10 lashes, basing their argument on a haḍīth stating: “No one is to be flogged with more than ten lashes except in the case of ḥadd crimes”. According to some Shāfi’ītes, 39 is the highest number, i. e. one less than the number prescribed by the Shāfi’īt school for khamr, while other Shāfi’ītes and some Ḥanbalītes assert that the number of lashes should be relative to the comparable ḥadd crime which is related to the ta’azir crime, i. e. 39 for the Shāfi’ītes or 79 for the Ḥanbalītes in khamr (alcohol/drug) related crimes. In my material there is no case where the punishment exceeds 100 lashes, which is the highest prescribed number for ḥadd cases, namely in zinā cases where the offender is unmarried. The “Yusuf” case listed above, where the punishment was set at 80 lashes for drug dealing equals the number of lashes prescribed by the Ḥanafī, the Ḥanbalī and the Māikī schools for drinking alcohol. 80 lashes was also the sentence in the khamr (alcohol/drug) cases of “Omar” and “Farah” which were discussed when treating the ḥadd crime of khamr. In contrast, in three other drug dealing cases, namely the “Haliima”, the “Abdullahi Ali” and the “Ali Mohamad” case, the number of lashes equals the prescribed number of lashes in the ḥadd crime of khamr in the Shāfi’ī

school, i. e. 40. Whether this is a dominating trend regarding drug dealing cases, and the punishment of 80 lashes given in the court in Beledweyne, is an exception, is hard to assess. It may also be that this indicates influence from different legal schools in regards to this issue, as the courts in Kismayo and Mogadish have sentenced drug dealers to 40 lashes. However, this hypothesis does not explain the number of 50 lashes given in the “Ahmad” case, nor does it explain why “Laban” who was accused and tried in a court of Beledweyne, Hiiran, for selling alcohol was sentenced to have his vehicle confiscated instead of being lashed.²³²

As indicated in the list above, additional punishments such as imprisonment, fines and expropriation is usual. This is a result of the extensive discretionary powers of the qāḍī in ta’zīr/siyāsa cases. The same applies to the form and level of punishment, although there are different opinions within the legal schools regarding fines and expropriation, in fact only the

230 Interview with “Abdullahi Ali” conducted by Mohamed and Abdow in Nairobi, April 2011.

231 Interview with “Ali Mohamad” conducted by Mohamed and Abdow in Nairobi, July 2011.

232 Interview with “Laban” conducted by Mohamed and Abdow in Nairobi, August 2011.

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Māikī school allows itunanimously.²³³ As such the punishments given in the

above-mentioned cases, as well as in the additional ta’zīr cases of my informants, seem in general not to diverge from classical provisions regarding ta’zīr.