Chapter 8: The law of the land – the state, muftīs and the qāḍī court
8.1 Issuance of law – the Fatwā Council and political authority
To outline al-Shabaab’s practice of lawmaking is no easy task as the information at hand is quite limited. However, my material may nevertheless give some indication of the underlying ideal of al-Shabaab’s religio-political regime.
As already mentioned, al-Shabaab has imposed numerous decrees, both prohibitions as well as commandments on the Somali public under their administration. For example, on March 24, 2009, trading and consumption of khat, mild narcotic leaves traditionally chewed by many Somalis, was banned in the Baidoa province,285 as had previously happened in January the same year in Kismayo.286 On May 18, the same year, an edict was released by the administration of the city of Merka and Bardhere which banned football. This prohibition followed an earlier edict banning movies and watching football on TV. And in June 13, 2009, the al-Shabaab administration in Kismayo outlawed the watching of movies on DVDs,
281 Ibid, pp. 177-180, 200-201.
282 Ibid, p. 179.
283 Vogel, Islamic Law and Legal System: Studies of Saudi Arabia, pp. 5-8, 17, 83- 165, 252-276.
284 Ibid, pp. 174-179, 249-252
285 U.S. Department of State, 2009 Human Rights Reports: Somalia, Human Rights Reports, Bureau of Democracy, Human Rights, and Labor, (11 March 2010),
http://www.state.gov/g/drl/rls/hrrpt/2009/af/135976.htm, [23.09.11]
286 Ansar AlJiad Network, Somalia: Islamists impose khat ban in Kismayo, www.As-Ansar.com, (24 January 2009), http://www.ansar1.info/showthread.php?t=823, [27.09.11].
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television, and to store pictures on cell phones. Al-Shabaab issued a stern warning that it would raid the homes of persons suspected of violating the ban.287
“Taban”, an informant from Kismayo explains that when a new edict is imposed it is announced through local FM radio stations,288 many of which, as Hansen points out, al-Shabaab controls.289 Many of the Somali informants claim that these edicts, or fatwās, the term which is mostly used by my informants, are issued by a Fatwā Council consisting of religious scholars. The council decides what should and should not be legal regarding specific issues, especially in religious matters, and according to “Fakir”, a local sheikh, who was critical of the Fatwā Council’s methods:
[They] act as mujtahideen [sg. mujtahid]. They make new tafsīr [“interpretation”, i. e. Qu’rān exegesis]
which is not known to the community and wasn’t applicable to specific situation. For example, when they are doing ijtihād, one explains some verse of the Holy Qu’rān. They prefer to apply how it is to apply people who lived one thousand years ago.290
Several of the informants think the Fatwā Council is closely linked to the central decision making organs of al-Shabaab, and that it is headed by a sheikh and amīr. Fu’ad Shangole, one of the senior amīrs of al-Shabaab, is mentioned by some as an influential or even the leading member of the central Fatwā Council. In addition, there are Fatwā Councils on regional and local levels, according to some informants. In his newly released report Hansen supports the the information from my informants, asserting that the Fatwā Council is an integrated part of the Maktabatu Da’wah, which is headed by Fu’ad Shangole. In addition to political and religious issues, this department is, according to Hansen, responsible for the dissemination of al-Shabaab ideology and viewpoints regarding Islam, sharī’a and jihād. The Makatabatu Da’wah is also responsible for local justice, and is the closest al-Shabaab comes to a legal office. As such, according to Hansen, the Maktabatu Da’wah is superior to the qāḍīs courts, and if the Fatwā Council is asked for a legal opinion regarding a specific issue, the subsequent fatwā would overrule all other court decisions. The Fatwā Council is also, Hansen asserts, responsible for the implementation of justice on the military fronts, but seems to lack the capacity to fully do so.291
287 U.S. Department of State, 2009 Human Rights Reports: Somalia, Human Rights Reports.
288 Interview with “Taban” conducted by the author in Nairobi, October 2010.
289 Hansen, Report for the Norwegian Defence Research Establishment, p. 85.
290 Interview with “Fakir” conducted by the author in Nairobi, October 2010.
291 Ibid, pp. 77, 81.
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The Fatwā Council of the Maktabatu Da’wah seems also to lack the capacity to control the issuance of fatwās/edicts locally, as several commandments are announced only in some of the al-Shabaab regions. For example, reports claim that the rules which order women to wear gloves and socks, a common supplement to the abāyah in conservative countries such as Saudi Arabia, were only implemented in some areas. Likewise, the ban on wearing a bra was reportedly announced only in Kismayo, Baardheere and some neighborhoods of
Mogadishu.292 Although this could imply some degree of (intentional) local independence, it seems more likely to be a sign of arbitrary power and impunity of local leaders, as extensive local variations could undermine the legitimacy of the central leadership, who strive for increased centralization, as Hansen indicates.293
As the Fatwā Council seems to be an integrated part of the Maktabatu Da’wah, one of the ministries of the central political organ, it means that it is closely linked with the political leadership. That Fu’ad Shangole, one of the top amīrs of the al-Shabaab leadership and a leading military commander, is associated with and probably the head of the Fatwā Council, supports this claim. The Fatwā Council may partly be seen as al-Shabaab’s response to the religious attacks that became prevalent after January 2009 when the TFG got the support of influential religious clerics in the Arab world, such as the well-known Islamic Scholar and leader of the European Fatwā Council, Sheikh Yusuf Qaradawi, based in Qatar.294 As such the Fatwā Council may function as a body that seeks to increase the religious authority of the movement, and further support al-Shabaab’s claims of Islamic legitimacy.
The closeness, or supposed co-localization, of religious and political authority comes to the fore in regards to for example the khat issue. According to Marchal, the question of whether one should prohibit khat usage has divided al-Shabaab’s leadership for years. One faction is willing to forbid the import of khat since it is perceived as a drug (its usage will thus be seen as the ḥadd crime of khamr). On the other hand, Marchal points out, many
commanders have a pragmatic approach to the issue: distribution of khat provides jobs for the poorest people and taxes are collected (1000 USD by plane plus landing fees).295 Another factor is the massive protests that al-Shabaab has experienced when trying to limit the trade of
292 Human Rights Watch, Somalia: Harsh War, Harsh Peace: Abuses by al-Shabaab, the Transitional Government, and AMISOM in Somalia, p. 46.
293 Hansen, Report for the Norwegian Defence Research Establishment, pp. 76-88.
294 Marchal, The Rise of a Jihadi Movement in a Country at War: Harakat al-Shabaab al-Mujaheddin in Somalia, p. 20.
295 Marchal, The Rise of a Jihadi Movement in a Country at War: Harakat al-Shabaab al-Mujaheddin in Somalia, p. 68.
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khat.296 Although, as Marchal points out, there have been several attempts to limit khat trade over the last years, the common solution to this problem seems to be a limited prohibition, where the khat traders are allowed to sell khat at dedicated markets in the outskirts of the towns. Moreover, khat usage is prohibited in the public sphere, but allowed at certain places.
However, there seems to be different practices to this issue. While several informants as well as Marchal297 assert khat usage to be allowed in private houses, the court ruling in the “Nadif”
case indicates that khat, at least in Bardheere, in the Gedo province, has to be chewed at dedicated chewing zones, equivalent to the practice regarding smoking of tobacco as displayed in the “Abdow” case from Afgooye, in Lower Shabelle.298
A half hearted ban may seem odd. But, politically, it may be a clever decision. If they had totally legalized it, they may have lost legitimazy as a serious Islamic actor since it is quite obvious that khat could be categorized as a drug. Similarily, a total ban would have reduced much-needed taxes as well as considerable public dismay which would have made the group very unpopular.