Man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all.
- Aristotle -
The world has been awakened by the lightning speed success of the Islamic Courts in much of southern parts in Somalia. The world is asking what this new Islamic Courts openings are about. Unfortunately, due to the spread of modern day media, most of what has been written about the Islamic Courts is written by media groups and individuals who have their own agenda and interest. They frequently falsify information and come up high-sounding rhetoric void of any substance or facts. Obviously they are not concerned with the plight of the Somali people but are more interested in using the issue of Islamic Courts and the issue of terrorism as a means to derail the peace process and seeking fame for themselves or to achieve their strategic interests.
My aim in this short article is to dispel the fog and smoke of the media and others have created to discredit or dismiss the significance of the Islamic Courts for the Somali people as legitimate and viable alternative to the present quagmire.
The earlier Somali Islamic scholars and leaders understood correctly that the most important duty was to establish and maintain justice among the members of the society; therefore the Islamic courts are not new to Somalia but are as old as the Islam itself. Since the time Somalis embraced Islam 615 AD, Somali chiefs such as the Malaakhs, Ugaas, Beeldaaje, Nabadoon, Duq, Suldaan, Weber and similar chiefs have implemented the Islamic justice through Islamic Sharia courts much similar to the ones in the embryonic stages being setup in Mogadishu and central Somalia. The remnants of that period can still be found the costal townships and territories. The rulings of the Somali judges “Qaadiis” and their court proceedings are still available.
Therefore, one can unequivocally say: the actions of the Islamic Courts in Somalia today is not an innovation but a revival of the Sharia courts that existed before the colonialism in the horn of Africa. The Somali judges were well known to dispense justice and have ruled in the maters of civil and criminal law such as theft, robbery, adultery, and homicides.
When the colonial governments enthroned themselves, they made illegal the rulings of the Sharia’a declaring the application of the Shari’a is repulsive to their Western “Christian” beliefs. They have replaced the Sharia’a with western methods of punishment and since no one at the time was trained in the western legal system, the courts mostly were closed and the Somali masses lost legal access. This had a devastating impact to minority tribes, women, the weak and those who had been captured by wars. They no longer had accesses to courts that can hear their cases or even if they had, they could not understand the language of the courts. Somali folklore is full with some clever people who deceived the white judges and gained fame and fortune at the expense of poor and uninformed others.
The results of these gross injustices with no one to turn to resulted wars of apocalyptic scale and some tribes have been eliminated or pushed into extinction making them tiny minorities today or do not exist at all. The tribes that survived from cataclysmic wars developed their own legal system called “Xeer” that heavily borrowed from the previous Islamic Courts thus the so-called “Diyo” or the blood money was derived from the Islamic Shari’a. They also modified the rules of fornication and adultery and incorporated in to the “XEER” system. It is highly imperfect and does not give their due process to the weak, women and the minority nonetheless it is better than nothing.
The revival of the Islamic courts have provided an opportunity to former colonialist media and others to fuel a baseless and unfounded lies against this effort to remedy an ill left by them and their remnants warlords and Ethiopia which happens to be one of the original colonial entities that abolished the original Islamic Court Systems.
ISLAMIC COURTS: A CONSTITUTIONAL DEMOCRACY
According to the United States Department of State; democracy and I quote "is government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system." In the phrase of Abraham Lincoln, democracy is a government "of the people, by the people, and for the people." In light of this definition, currently, the Somali Islamic Courts are implementing Constitutional democracy in the form of Islamic Shari’a as they are now the agents the people rallied behind to replace the previous warlord system.
Therefore, it is self evident that democracy must emanate from the people and must serve the interest of the people. It is a dictatorship and not a democracy if the citizens have no say in who should govern them and how they should be governed.
SHARI’A WILL WORK:
Allah (God) says in the holy Quran “O you who believe, Stand out firmly for justice, as witnesses to Allah, even if it is against yourselves, or your parents, or your kin; and whether it be against rich or poor: For Allah can best protect both. Follow not the lusts (of your hearts), lest you swerve, and if you distort justice or decline to do justice, verily Allah is well-acquainted with all that you do.” (Holy Qur’an 4:135)
The dispensation of rule of law requires learned and moral Judges that can remain independent and impartial for the cases they are entrusted to dispense. As of this writing; there are no trained lawyers in the Western Law in Somalia due to several factors. The main one being Somalis have recently migrated to the western world and the ones who studied the legal system are people who studied in the Middle East and have studied in Islamic Sharia and jurisprudence. In the current composition of the Islamic Courts there are many who hold PhD’s in Islamic Sharia and jurisprudence. They have learned and are well versed the Shafia school of thought that most Somalis follow. The current judges have access to cases and literature that enables them to be effective judges. In the last fifteen years, The Islamic Sharia’s judges have been overseeing in matters of criminal and civil in their respective courts and have intimate knowledge of the cultures, norms and the environment they operate.
“I have forbidden oppression for myself and have made it forbidden amongst you, so do not oppress one another.” (Hadith 24 of Forty Hadith by An-Nawawis)
The Somali people are 100% Muslims and would not accept rulings that are not cogently Islamic or contrary to their Islamic teachings in the matters of civil and criminal law. Therefore, a Western trained lawyer would not grasp the enormity of his or decisions which would further alienate common people to seek legal help. This would have a devastating impact to women, children and minority groups who would not seek help, since there are no public defenders and they could not afford a legal representative under a Western legal system.
“Do not envy one another; do not inflate prices one to another; do not hate one another; do not turn away from one another; and do not undercut one another, but be you, O servants of God, brothers....” (Hadith 35 of Forty Hadith by An-Nawawis)
Today, courts are filled by battered women who are complaining about their husbands, people with dispute of properties, and people who have been injured or maimed by a reckless act. Women who have been abandoned by a drug “Khat” addict husbands and seeking divorce, issues of criminality in nature such as eradication of natural resources, killings of innocent, theft, and many other cases that require understanding of the local customs and the interpretation of the Islamic legal text.
The Islamic Courts, like in most legal systems have shown to respect the human rights such as freedom of worship, expression, movement, association and business and property laws. The Islamic Courts have not restricted or disturbed unnecessarily, except few Cinemas that used to show Adult (Sex) movies and repeatedly have refused to close or seek other methods of employing their cinemas. This later development which the media have taken out of context was in accordance with the due process of law. For example, the city that I now live in the United States it is illegal to open or own adult businesses such as strip clubs and pornography shops and the local movie Cinemas do not show such movies. In fact if they show such a movie they will be closed down. Similarly, it is perfectly legal under the Islamic law to close down Cinemas that propagate social malice be it in Mogadishu or in Montana.
The Islamic courts have not violated personal freedoms because they are not searching houses or asking people what they do at their houses and in private. Islam discourages sinning but if you sin and you do not make it public it is between you and Allah. It is not a good thing to sin for your personal salvation but Islamic Courts are not going to ask what you do in your private life. However, if one comes out to spread the sin “Fasaad” to the greater public then the courts have the right to stop it and they are within the rule of law.
Another example, India the largest democracy today, prohibited and banned the export of Paris Hilton (vile movie program) to their country and they refused to be shown in their theaters. Obviously, no one accused of India of being a Taliban even thought what they did is exactly something comparable to what the Islamic Courts have done in Mogadishu.
The fairness and equality that the Islamic Sharia’a calls for is universal and it has been mentioned both in the Quran and the Hadith the sayings of the prophet. I am a firm believer that this proven tradition and Sharia’a based justice if applied correctly and justly would not fail the Somali people, the judges might struggle with it because Sharia’a was not applied for a long period of time but eventually they will get it right and Somalis are willing to stick with it in the journey to a universal justice, peace and harmony.
Ali Osman (MarkaCadey.Net) E-Mail:
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(Ali Osman is a Somali citizen currently living in United States)
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