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This paper examines how Somali middle class women achieved political power and introduced important legal reforms during the period from 2000 to 2003. The discussions and analyses include a literature review and some historical background, together with an examination of the constitutional debates and women’s strategic agendas that have been successfully addressed. Finally, some conclusions are drawn.
Citation preview
Women and Constitutional Debate in Somalia:
Legal Reforms during Reconciliation Conferences
(2000 - 2003)
By
Abdurahman M. Abdullahi (Baadiyow)
Introduction
One of the most discussed issues among Western academics, as well as within
the Muslim world itself, concerns the role of women and the nature of gender
relations in Islamic societies. These discourses are giving new dimensions to
the issue of women’s political rights in nation-state institutions and to the
meaning of equality as it applies to all citizens in national constitutions.
Somalia is a peripheral collapsed state, but contrary to stereotypical images
that may be associated with its treatment of women, the country presents
unprecedented prospects for their empowerment.
Historically, women in Somalia began their active political participation during
the struggles for national independence. Inter alia, these culminated in their
gaining voting rights in 1958. And, since independence in 1960, women have
increasingly occupied public positions and roles. In the following decades of
the 1970s and 1980s, a few women began to participate in juridical affairs and
were appointed as legislators. However, the drastic changes in gender
relations and roles that occurred after the civil war of 1991 offered women
new power. These changes enabled them to participate in the constitutional
debates that saw the interim Constitution adopted at the 2000 Somali
Reconciliation Conference in Djibouti. At this point, women reached an historic
milestone in the progress of their empowerment when they gained 11 per cent
1
of the allocated 225 seats of the parliament.1 Their role was further
strengthened during the Reconciliation Conference in Kenya in 2003 where
they were allocated a 12 per cent quota of the parliamentary seats.2 At both
these conferences, women gained the political power that led to them
introducing important constitutional reforms. Unfortunately, however, these
reforms are temporarily shelved until a functionally effective government takes
control of the country and restores law and order. This is a process that is
currently under way.3
Women’s empowerment, as it was achieved at the 2000 Somali Peace
Conference in Djibouti, attracted considerable academic attention. This has
been because Somalia is a Muslim society characterized by a patriarchal social
system that is manifested in its Islamic and clannish structures.4 Moreover,
this empowerment occurred concurrently with the ascendance of political
Islam and political clanism, both of which are understood as presenting major
obstacles to any lifting of women’s public profiles.
In the present context, constitutional debate refers to conscious and organized
discussions concerning the drawing up of a constitution or a charter, the latter
terms being used here as interchangeable. The women to whom reference will
be made are those in the middle class accord to the sociological definition of
Weber. This paper examines how Somali middle class women achieved political
11. There were an additional 20 appointed seats allocated as adjustment and comprise solutions, but women were not included among these.22. This was the highest level of women’s representation within Arab parliaments. By comparison, Syria had 8.4%, Sudan 8.2%, Algeria 7%, Tunisia 6.8%, and rest of Arab World less than 3% (see “Progress of Arab women”, a report produced by UNIFEM in the year 2004, available from www.arabwomenconnect.org, accessed 10 November 2005). In comparison with women parliamentarians in Africa as a whole, 13 countries have a larger percentage, including South Africa and Mozambique with 30 %, and Rwanda and Uganda with 25.7% and 24.7% respectively (see “Progress of the World's Women: Most positive change seen in women's political participation”, available from www. portal.unesco.org, accessed 10 November 2005). 33. National institutions formed at the Reconciliation Conference in Kenya, just like the Parliament and Government, are still divided into two camps. A new initiative aimed at reconciliations is presently in progress.44. Somalia is considered 99% Muslim with most people adhering to the Shafi’i school of jurisprudence.
2
power and introduced important legal reforms during the period from 2000 to
2003. The discussions and analyses include a literature review and some
historical background, together with an examination of the constitutional
debates and women’s strategic agendas that have been successfully addressed.
Finally, some conclusions are drawn.
1. Literature Review
Modern Somali scholarship is dominated by Orientalist and anthropological
literature in which it is presupposed that the traditional social structure is
static. Moreover, Somali historiography confers superseding influence on the
patriarchal clan factor in society. This pattern of scholarship is evident in the
writings of the Orientalist Richard Burton5, colonial anthropologists I. M.
Lewis6 and Enrico Cerulli,7 and junior anthropologists Berhard Helander8 and
Virginia Luling9. Edwad Said and other scholars have been critical of the
Orientalist method, ideology, and discourses. They consider its andocentric
views and analyses responsible for constructing a distorted image of Somali
women. Christine Choi Ahmed criticized these scholars when exposing “the
myth of the Somali women as chattel, commodity, and creatures with little
power”.10 They were also criticized by Abdi Samatar as “lacking historical
specificity in the use of key concepts”.11
55. A British explorer and Orientalist who visited Somalia in 1856 and wrote a book on his journey. See Richard Burton, First Footsteps in East Africa. (New York: Praeger, 1966).66. Professor of Anthropology, London School of Economics. He wrote his PhD thesis on Somalia in the 1950s and since then he has written extensively on Somalia. His most famous works are A Modern History of Somalia: Nation and State in the Horn of Africa (Boulder, Colorado: Westview Press, 1988) and A Pastoral Democracy (Oxford: Oxford University Press, 1961). 77. Italian Ethnologist employed by the Italian Administration in Somalia. He wrote voluminous works, including Somalia: Scriti Vari Editi ed Enditi (three volumes), (Rome: Istituto Poligrafico della Stato, 1957-64).88. Swedish anthropologist who wrote his PhD thesis on Somalia and currently works at Uppsala University, Sweden. See his Slaughtered Camel: Coping With Fictitious Descent among the Hubeer of Southern Somalia (Uppsala University, 2003).99. An anthropologist who wrote her PhD on Somalia. See her Somali Sultanate: The Geledi City-State over 150 Years (London: Haan Publications, 2002).1010. Christine Ahmed, “Finely Etched Chattels: The invention of a Somali Women,” in The Invention of Somalia, ed. Ali Jumale (Lawrenceville: The Red Sea Press, 1995), 159.1111. Abdi Samatar, “Destruction of State and Society in Somalia: Beyond the Tribal Convention,” The Journal of the Modern Africa Studies 30 (1992), 625-641.
3
By contrast, another group of scholars emerged in the 1980s and took a stand
known as the “transformationist thesis”. Prominent scholars in this group are
Lidwien Kapteijns,12 Ahmed Samatar,13 and Abdi Samatar.14 In place of the
pastoral clan-based perspective, Kapteijns, for example, discerns in Somali
society the existence of people with agrarian and urban orientations who
developed “different gender ideologies and gender roles”.15 In this same vein,
Ahmed Samatar and Abdi Samatar agree when suggesting a more
comprehensive perspective founded on analysing traditional Somali society
within the triangular model that includes clan attachment (Tol), traditional law
(Heer), and Islamic Shari’a.16 According to their thesis, internal dynamics and
interactions between the elements of the triangular model should account for
the continuous encounter with modernity. This implies that gender relations
and women’s participation in society should be examined within these multiple
parameters. Therefore, they severely criticize the perspective based on
patriarchal clan-lineage analyses that debase the social role of women.17
After the civil war of 1991, a revisionist tendency emerged that criticized the
above perspectives as sharing an acceptance of and “utilizing official
narratives”18 that “had contributed the construction of old Somalia”.19 This
tendency emerged as an academic response to the collapse of the state in
Somalia. Accordingly, its advocates demystify the conventional image of
Somaliness, including its gender relations and roles as these were constructed 1212. Associate Professor of History, Wellesley College, Massachusetts. He has written many academic articles on Somali women 1313. Dean of International Studies, McMaster College, St. Paul, Minnesota. He wrote a number of works on Somalia. See, for example, his Socialist Somalia: Rhetoric and Reality (London: Zed Books, 1988). 1414. Professor of Geography and Global Studies, University of Minnesota, USA. 1515. Kapteijns, “Women and Crisis of Communal Identity: The Cultural Construction of Gender in Somali History,” in The Somali Challenge: From Catastrophe to Renewal?, ed. Ahmed Samatar (Lynne Reinner Publishers, 1994), 214.1616. Ahmed Samatar, “The Curse of Allah: Civic Disembowelment and the Collapse of the State in Somalia” in The Somali Challenge, ed. Ahmed Samatar, 111.17 Abdi Samatar, “Destruction of State and Society in Somalia,” 630.18 Ali Jumale (ed.), The Invention of Somalia, xii.19 Ibid., xiii.
4
by the colonial ethnologists and anthropologists. They argue that a
nationalistic explanation of Somali history was devised to suit the narrow
interests of some segments of the society and does not offer a comprehensive
account that is relevant to the country as a whole.20 Their response was to re-
examine conventional national symbols and myths, such as those relating to
racial homogeneity, linguistic unity, common historical experiences, and
gender relations and roles.
What is most characteristic of the literature on Somalia is the paucity of
references to and analyses of women and Islam. Major historical works
excluded women as agents from their researches and analyses.21 Recently,
however, a few works in line with the revisionist historiography have
emerged.22 Most of these focus on women’s role in civil society organizations,
the education sector, economic activities, peace dialogues and actions, and
human rights issues. Much of this literature has been published by the United
Nations Development Fund for Women (UNIFEM), United Nation Development
Program (UNDP), and international non-governmental organizations such as
NOVIB-Somalia.23 With respect to the legal aspects of Somali life, the literature
is equally inadequate. This is perhaps due to the absence of any functional
government and national institutions, including those of higher education,
2020. Awes Osman Hagi and Abdiwahid Osman Hagi, Clan, Sub-clan and Regional Representation in the Somali Government Organization 1960-1990: Statistical Data and Findings (Washington, DC, 1998).2121. These studies include Ali Hersi, “The Arab Factor in Somali Society: the Origins and Development of Arab Enterprise and Cultural Influence in the Somali Peninsula” (PhD Thesis, University of California, Los Angeles, 1977); Mohamed Nuh Ali, “History in the Horn of Africa, 1000 BC to 1500 AD” (PhD Thesis, University of California, Los Angeles, 1985); Lee Cassanelli, The Shaping of Somali Society: Reconstructing the History of a Pastoral People, 1600-1900 (University of Pennsylvania Press, 1982); Ahmed Samatar, Socialist Somalia; Saadia Tauval, Somali Nationalism (Cambridge University Press, 1963); and David Laitin and Said Samatar, Somalia: Nation in Search of a State (Boulder: Westview Press, 1987.2222. See Ladan Affi, “Men Drink Tea While Women Gossip” in Putting the Cart before the Horse, ed. Abdi Kusow ( The Red Sera Press, 2004); Christine Ahmed, “Finely Etched Chattels”; and Judith Gardner and Judy El-Bushra, Somalia: The Untold Story, The War Through the Eyes of Somali Women ( London: Pluto Press, 2004).2323. See www.unifem.org, which contains 46 entries for Somali women, and http://www.somali-civilsociety.org. See also Country Development Reports on Somalia available from http://www.so.undp.org/hdr.htm, accessed 10 November 2005.
5
during the last 15 years. With few exceptions, available sources are mostly
primary legal documents.24 Therefore, in addition to drawing on general
secondary sources, this paper will extensively utilize five documents: the
Somali Constitutions of 1960 and 1979, the National Charters of 2000 and
2003, and the Family Law of 1975. Moreover, the abundantly available oral
sources will be used to construct the history of women’s contributions to the
constitutional debates and legal reform.
2. The Historical Setting: Women, Civil War, and the Peace
Conferences
On 28 January 1991, rather than the expected regime change taking place, the
institution of state in Somalia collapsed. This came 30 years after its
establishment in 1960.25 As a result, a brutal civil war broke out and brought
with it the spread indiscriminate terror, havoc, plundering, looting,
destruction, and killing. In such circumstances, it was the women, children,
and minorities who were the most severely affected.26 It was at this critical
moment in history that Somali civil society re-emerged after more than 21
years of absence and became the non-state actor providing essential services.
Women were among the frontrunners in the formation of the civil-society
organizations and community-based grass-root networks that emerged.27
Eventually, the new role of women, stemming from the earlier decade of their
improved political capacity, was consolidated by the military regime’s policies, 2424. Constitution of the Somali Republic of 1960, Constitution of the Somali Democratic Republic of 1979, Transitional National Charter of 2000, Transitional Federal Charter of the Somali Republic of 2003, and Family Law of 1975.2525. The Somali state was formed after the former British and Italian colonies were granted independence and united on 1 July 1960. The first democratic regime continued until it was overthrown in a coup d’etat in 1969. Military rule continued for 21 years and collapsed in 1991. 2626. Fawzia Muse, “War Crimes against Women and Girls” in Somalia: The Untold Story, eds Judith Garner and Judy El-Bushra, 2004, 69-89. 2727. Beyond specialized women’s organizations, “women enjoy[ed] strong representation in local NGOs,” with most surveyed organizations having “a ratio of roughly 1:4 women to men which implies that there is a gradual acceptance of women’s place in the decision-making process at all levels in Somalia.” See Report of NOVIB-Somalia, Mapping Somali Civil Society, (Nairobi, Kenya, 2003), 22. Available at http://www.somali-civilsociety.org/strength/phase1 _Mapping %20somalicivilsociety.asp, accessed 10 November 2005.
6
progress in women’s education, and an enhanced social and religious
awareness of the need for change in their place in society.
Gender roles are known to shift dramatically during wars, in the aftermath of
civil wars, and under authoritarian regimes.28 In Somalia, which had
experienced 21 years of authoritarian rule followed by 15 years of civil war,
this was indeed the case. There is ample evidence that women’s roles
noticeably changed in all aspects of life during this period. In addition to all
sorts of victimization and exploitation experiences concomitant with the nature
of wars, many women were compelled to become heads of households and the
breadwinners of families. They cared the old, the sick, the injured and
orphaned children while most of the men were fighting. Shifting power
relations gave Somali women new social and political opportunities, as well as
imposing enormous constraints on them. Through experiencing hardships,
women became more dedicated and committed to their new role. They took
over when most middle-class men lost their prestigious jobs and failed to
accept the only available jobs in the market, such as running small businesses
as street merchants and retailers.29 Women’s role during the civil war
expanded in the humanitarian field, in the peace dialogues, and in the
advocacy of human rights as part of Somali civil society.30 Nevertheless, they
were absent from the 11 reconciliation conferences held between 1991 and
1999. Among these were the four major conferences in Ethiopia (1993), Kenya
(1994), Ethiopia (1996), and Cairo, Egypt (1997). It is argued that three main
local factors had paved the way for the women’s political participation.31 These
are: (1) growth of Somali civil society in the decade 1990 to 2000; (2)
ascendance of moderate Islamic discourses on women’s rights; and (3) the
2828. Osseina Alidou and Meredeth Turshen, “Africa: Women in the Aftermath of Civil War,” Race and Class, 41, 2000.2929. Ladan Affi, “Men Drink Tea While Women Gossip”, 106-108.3030. Zainab Mohamed and Shukri Hariir, “Women and Peace-making In Somaliland” in Somalia: The Untold Story, eds Judith Garner and Judy El-Bushra, 142-152.3131. This explanation was produced as a result of a group discussion organized by the Institute for Somali Studies (ISOS) of Mogadishu University on 15 July 2002. The author participated in these discussions and recorded the proceedings.
7
failure of warlord-driven reconciliations during first decade of the civil war.
Moreover, the impact of the millennium development goals of the UN in 2000
and the Beijing World Conference on Women in 1995 were also contributing
factors.
The 2000 Somali Peace Conference in Djibouti was sponsored by the Djibouti
Government. It came after 10 years of the catastrophic civil war of 1991 and
signalled an innovative trend towards Somali reconciliation that turned out to
be a remarkable milestone for political realism.32 As a result, hitherto
underestimated factors contributing to political divisions, such as clans,
minorities, religion, and women were recognized, taken into account, and
addressed within the power sharing modality. Retrospectively, the political
participation of women was first agreed upon at the National Reconciliation
Conference held in Addis Abba in March 1993. This agreement failed.33
Djibouti President Ismael Omar Guelleh, in his capacity as the chairperson of
the Intergovernmental Authority on Development (IGAD), announced in his
speech at the UN headquarters on 22 September 1999 that he intends to host
a Somali Reconciliation Conference that will be driven by Somali civil society.
The conference was held in Djibouti in two consecutive phases. The
preparatory phase of the proceedings, which included a number of
symposiums, was held during March 2000 with the intention of mobilizing
ideas and garnering support for the conference from a variety of Somali
3232. The 12 previous reconciliation conferences were attended only by political faction leaders. The 2000 Djibouti Conference was the first peace conference where representatives of Somali civil society were invited. It took a different approach from the previous conferences and made obsolete their earlier approaches, such as the “bottom up approach”, the “warlord driven approach”, and the “nationalist non-clan approach”. 3333. Nakaya Sumiye, “Women and gender in Peace Process: From Women at the negotiating Table to Postwar Structural Reforms in Guatemala and Somalia,” Global Governance. 9 (2003). See also Brigette Sorensen, Women and Post Conflict Reconstruction: Issues and Sources, The War-Torn Societies Project, Occasional Paper No. 3 (Geneva: UN Research Institute for Social Development, 1998).
8
groups.34 The second phase was launched on 2 May 2000 and more than 2000
Somalis participated.35 The criteria to be met for participation proved to be the
most difficult issue to resolve. After thorough discussion and consultation
during which all options available were considered, the option of clan
representation ultimately prevailed.36
Somalia is divided into four major clan families, namely the Darood, the
Hawiye, the Dir and Digil, and the Mirifle. In addition, there exist numerous
small clans. In order to ensure full representation, a power sharing criterion of
4.5 was adopted that included equal quotas for the four major clans and half a
quota for an alliance of the minority clans. Women lobbied to be considered a
separate clan because clans did not include them among their official
delegates. They gained that dispensation with the strong support of President
Guelleh of Djibouti and actively participated in running the conference as the
sixth clan. They were well represented on the Charter Drafting Committee and
the Steering Committee of the conference.37
The quota system adopted by the conference and recorded in the Charter
allocates 225 parliamentary seats as follows. Each of the four major clans has
44 seats, 24 seats go to the alliance of the minority clans, and 25 seats are for
women. In addition, 20 seats were designated for individuals as an adjustment
and reconciliation gesture. This meant that the members of parliament would
3434. This phase included an intellectual symposium participated in by more than 60 Somali scholars, a business group conference, and consultation with former elder politicians. The present author was among the organizers of the symposium.3535. Official delegates numbered 810, consisting of four clan delegations of 180, each including 20 women, and 90 minority clan alliance representatives, including 10 women. Among the 810 delegates, women gained 90 official delegate places, which constituted about 9% of the delegates. In addition to this, more than 1500 observers were present, including many women.3636. See Abdulqadir Adan Abdulle, “Djibouti Peace Process: a non-clan approach of distributing MPs”, a paper presented to the Somali Intellectual Symposium held in Djibouti in preparation for the 2000 Somali Peace Conference.
3737. See Zainab Mohamed , et al., “Post-War Recovery and Political Participation,” in Somalia: The Untold Story, eds Judith Garner and Judy El-Bushra, 193. Mrs Asha Haji Ilmi was among five women on the Steering Committee of the conference, and of the 32 members on the Charter Drafting Committee, five were highly qualified women.
9
number 245 in all. The conference continued for four months (May to August
2000) and produced the first Somali government in 10 years. However, many
of the armed faction leaders rejected the outcome of the conference and were
determined to undermine the interim government, an endeavour that had the
strong support of Ethiopia. The result was that in 2003, another conference
was organized under the auspices of IGAD in Kenya. This conference adopted
new Transitional Charter and produced the Transitional National Assembly and
Government. Unfortunately, however, politicians in Somalia are still
squabbling and the Somali people remain without properly functioning state
institutions.
3. Constitutional Debates: Islam and Women
Muslim communities in Somalia have a long history of applying the Shari’a as
interpreted by the Shafi’i school in conjunction with varieties of local customs
and laws. In these communities, men and women had different traditional roles
to play within the socio-economic system and political structures. Successive
colonial administrations in the late nineteenth century did not have much
influence on relationships involved because of their direct social impact and
religious sensitivity. However, conditions changed after the introduction of the
modern idea of the nation state and the development of the Somali national
identity in the 1950s. Under its auspices, men and women are considered to be
equal as citizens of the state. The Constitution of the Somali Republic adopted
in 1960 confirmed the equality of all citizens, while at the same time
establishing Islam as the state religion.38 Family and property laws remained in
the realm of the Shari’a and the strict interpretation of selective Shafi’i
jurists.39 The military regime of 1969, with its socialist orientation, enacted a
number of laws that advantaged women, such as equal salary for equal work 3838. Article 50 of the Constitution clearly states that “The doctrine of Islam shall be the main source of laws of the State” and Article 98, Paragraph 1, prescribes that “Laws and provisions having the force of law shall conform to the Constitution and to the general principles of Islam”. See Paolo Contini, The Somali Republic: an Experiment in Legal Integration (London: Frank Cass & Company LTD., 1969), 58.3939. Ibid., 35. The main reference law book for the Kadis in Somalia is “Kitab Al-Minhaj Li-Al-Imam Al-Nawawi”.
10
and generous paid maternity leave, together with the new Family Law
instituted in 1975.40
Historically, the Somali state had adopted two Constitutions during the 30
years from 1960 to 1990. The first one was approved in 1960 and established
guidelines for democratic institutions, while the second one was adopted in
1979 as a reflection of the socialist orientation of the military regime. Under
the first Constitution, Islam was declared to be “the religion of the state” and
accordingly, Somalis were to be governed in accordance with “the general
principles of Islamic Shari’a”.41 Moreover, “the doctrine of Islam shall be the
main source of laws of the state”42 and “laws and provisions having the force of
law shall conform the Constitution and to the general principles of Islam”.43
According to these Articles “a law might be declared null and void by the
constitutional court not only if it contravenes a specific provision of the
Constitution but also if it contravenes the general principles of Islam”.44 The
second Constitution of 1979 was highly secularized in line with the socialist
ideology of the regime of the day. It reconfirmed that “Islam shall be the state
region”.45 Moreover, even before the adoption of the new Constitution, the
regime has adopted a highly secularized Family Law that created great
religious and political upheaval in 1975.46
4040. All the merits of the document were overshadowed by the provisions of inheritance that offered straight equality of men and women. This met with strong opposition from Islamic scholars. 4141. Article 1, Paragraph 3 of the Constitution of Somali Republic of 1960. See also Article 30, Paragraph 2 that states “The personal status of Muslims is governed by the general principles of Islamic Shari’a”. 4242. Ibid., Article 50. 4343. Ibid., Article 98, Paragraph 1. 4444. Paolo Contini, The Somali Republic, 59. 4545. Constitution for the Somali Democratic Republic, 1979, Article 3, Paragraph 1, available from www. Oceanalaw.com/NXT/gateway.dll/CCW/current/Somalia/Som_Constitution_D, accessed 4 November 2005. 4646. The adoption of the Family Law caused the persecution of 10 leading Islamic scholars who were peacefully protesting against it, as well as of hundreds of other scholars. See I. M. Lewis, A Modern History of the Somalia (Boulder, Colorado: Westview Press, 1988), 213.
11
Constitutional debate during the Somali Reconciliation Conference in Djibouti
produced an interim Constitution (or Charter) that the 810 delegates were able
to debate freely without the intervention of colonial powers or the institutions
of the Somali state. After a drafting period of 30 days, the interim Constitution
received the approval of more than 97 per cent of delegates on 17 July 2000.
Perhaps the reason for it receiving such extensive support was its spirit of
reconciliation and the fact that it addressed the concerns of all groups and
regions. It was also regarded as the most Islamized constitution in the history
of Somalia because as well as reiterating the status of Islam as it was in the
first Constitution of 1960, it included two important additional provisions. In
Article 2.2, it reinforced that “Islam shall be the religion of the state and no
other religion or ideas contrary to Islam may be propagated in its territory”.47
And, according to Article 4.4, “The Islamic Shari’a shall be the basic source for
national legislation. Any law contradicting Islamic Shari’a shall be void and
null”.
These additional Articles are indicative of the influence of the modern Islamic
movements during the constitutional debates at the Somali Reconciliation
Conference in Djibouti. This influence reflected the fact that Islamic activism
was gaining ground after the collapse of the state and that its impact was not
only felt in the social and economic spheres, but also in politics. However, with
respect to the proper position of women as political participants, the
movement remained very much divided. The reason for this was that the
Islamic texts (the Qur’an and Hadith) were always subject to different human
interpretations that reflect the norms, the customs, and the social, economic
and political conditions of communities. Therefore, in the Somali context, the
obstacles to women’s political participation stemmed not from Islamic
principles per se, but also from the traditional Islamic interpretation adhered
4747. Article 29 of the Constitution of 1960 states that “Every person shall have the right to freedom of conscience and freely to profess his own religion .... However, it shall not be permissible to spread or propagandize any religion other than the religion of Islam.” Restricting the spread of other religions was adopted on 29 June 1963.
12
to by the influential Sufi brotherhoods and the Shafi’i jurists. This situation was
compounded by the position of the Salafia movement that is affiliated with the
Wahabi School in Saudi Arabia.48 Both these groups agree about excluding
women mostly from any public roles and from the decision-making processes of
communities, thus relegating them mainly to the roles of wives and mothers.49
By contrast, moderate Islamic groups and civil society organizations were
highly supportive of women’s political empowerment. They strongly believed
that adherence to Islam should not represent an obstacle to competent women
who want to take on leadership roles in their societies. This encouraged
women and other supportive groups to work closely together in an endeavour
to overcome the conservative interpretations of Islam adopted by the groups
referred to above. It is worth noting here, however, that the opposition of the
Wahabi group was weakened during the civil war, while the traditional Ulama
were mostly apolitical in their stance.50
4. Women’s Strategic Agendas
The basic strategy adopted by women was to lobby from an Islamic perspective
and to bring about discourses that argue their right to political participation.
Their argument was from within Islam and avoided any connection with
feminist movements. Moreover, women’s leadership involved strictly adhering
4848. Organizationally, Al-Ittihad represents the neo-Wahabi School in Somalia. They have participated in the civil war, mainly in three locations: in Lower Juba in 1991, in the North Eastern region in 1992, and in the Gedo region in 1997-1998. After “9/11”, however, the US included Al-Ittihad in the terrorist list. See Ken Menkhaus, “Political Islam in Somalia.” Middle East Policy 9: 109-123, available at www.csa.com, accessed 28 October 28 2004. See also Hussein Adam, “Islam and politics in Somalia”, Journal of Islamic Studies 6 (1995):189-221, available from www.csa.com, accessed 28 October 2004. 4949. Their understanding is based on the interpretation of two verses from the Qur’an. The first verse is “the rights of the wives with regard to their husbands are equal to the husbands’ rights with regard to them, although men have a degree (darajah) over them. And God is almighty, wise”. (2:228). The second verse is “Men shall take full care (qawamuna) of women with the bounties which God has bestowed more abundantly [preferred] (faddala) on some of the former than on some of the latter, and with what they may spend out of their possessions ….” (4: 34). 5050. The influence of the Wahabiya group at the conference was not strong because they had opposed it in the beginning. Interview with Nurta Hagi Hassan, 20 November 2005, Toronto, Canada.
13
to the Islamic code of conduct and modes of dress.51 They linked themselves
closely with the Islah group who were believed to have a strong influence at
the conference, as well as with intellectual groups and civil society activists.52
Many of these women had high levels of education in Islamic Shari’a and were
well versed in the different opinions of jurists. They took an extreme stand in
the wording relating to Islam in the Constitution and strongly supported the
requirement that any law that contradicts Islamic principles should be null and
void.
Having achieved such a sound religious reputation, and through forming
strong alliances with the moderate religious groups, women began to realize
their strategic agenda. The major strategic items of concern at the conference
of 2000 were to gain a significant quota in parliamentary membership and to
retrieve the Family Law of 1975. Moreover, their legal agenda in 2004 was
focused on gaining total equality with men within a wider interpretation of
Islam that reached beyond the Shafi’i jurists and the Wahabi conceptions.
4.1. Attaining Quota Representation
The story of how women achieved such a quota begins during the Intellectual
Symposium held in Djibouti in March 2000. About 60 Somali intellectuals,
including a number of highly educated women, participated on that occasion.
In closing the symposium with President Guelleh of Djibouti present, Asha
Hagi Ilmi, a civil society activist, gave an inspiring speech in the name of the
Somali intellectuals. In May 2000, when the second phase of the conference
5151. Interview with Asha H. Ilmi, 10 November 2005, Boston, USA. Asha is a peace activist who represented women on the Steering Committee of the 2000 Conference in Djibouti. Currently, she is a member of parliament. 5252. On the role of Al-Islah in the Somali conference in Djibouti, see Andre le Sage, “Al-Islah in Somalia: An analysis of modernist political Islam”, unpublished paper, 2004, cited in Ronald Marshal, “Islamic Political dynamics in the Somali civil war”, Paper presented at the conference on “Islam in Africa: A global, cultural and Historical Perspective”, Institute of Global Cultural Studies, Birmingham University, April 19-21, 2001. See also Matt Bryden, “No Quick Fixes: Coming to Terms with Terrorism, Islam, and Statelessness in Somalia”, Journal of Conflict Studies 22 (Fall, 2003).
14
was inaugurated, clan leaders excluded women from their official delegations.
In response, President Guelleh offered them 100 places as special delegates.
After gaining these promising results, Asha Haji Ilmi observed that the
“women’s group were encouraged more and advocated innovative demand to
be considered as the 6th clan of the conference. This demand was accepted by
the organizing committee of conference”.53 This outcome offered women the
opportunity to participate in the conference on equal terms with other clan
groups. As a result, they were able to put their representatives on the Steering
Committee and Charter Drafting Committee where vital decisions were made.
Decisions about what to include in the Transitional Charter were made by the
Charter Committee comprising 32 members, five representing each of the six
clans (four major clans, the alliance of minority clans, and the women’s group),
plus two advisory members from the Somali Technical Committee. Motions
were approved if they received an absolute majority vote, which meant that
women needed 16 votes from among the 30 eligible voters to have items on
their agenda accepted. The women’s group was highly organized and launched
an effective lobbying strategy. Their initial goal was to gain 25 per cent of the
seats. On meeting with stiff resistance to this claim, they proposed a
compromise solution that saw them granted 11 per cent of the seats. Their
lobbying received strong backing from the civil society groups, moderate
Islamic groups, personalities of high standing, and from President Guelleh.
Nurta Haji Hassan, a women lawyer and a member of the women’s group on
the Charter Committee, affirmed that the “President of Djibouti Ismael Omar
Guelleh was very supportive for the women’s empowerment and exerted his
utmost influence in the conference”.54 In addition, most of the Charter
Committee members were tolerant of the women’s claims. Moderation in the
interpretation of Islam with respect to women’s participation in politics
5353. Telephone interview of Asha Hagi Ilmi on 25 October 2005. Currently, she is in Boston, USA. Asha was selected to represent women on the Steering Committee of the Somali Reconciliation Conference. 5454. Also, an interview with Mrs. Nurta H. Hassan on 28 October 2005.
15
prevailed. Discussions revolved only around the number in the quota they were
to be offered. After at least five days of heated discussion on the issue, the
women’s agenda was passed. The drafted Constitution offered them 25 seats in
the Interim Parliament.
4.2. Retrieval of the Family Law of 1975
After offering women a membership quota in parliament, the whole issue of
Islam and women took on a new dimension at the conference and the
modernist viewpoint prevailed. The women’s strategy was to stretch the
interpretation of Islam to the extreme in their favour. Their major arguments
emanated from the view that it is safe to retrieve all the laws of the country,
provided they do not contradict Islamic principles. It was also contended that it
was safe to adopt all the terms of the declaration of universal human rights.
Moreover, the women argued that the new Somali government should not start
from scratch. Rather, it should derive all possible benefits from the laws it had
enacted since independence was declared in 1960. This rational approach to
the use of previous legislation was not only unanimously approved, but it was
included in the Constitution as a provision stating that “The 1960 Somalia
constitutions and other national laws shall apply in respect of all matters not
covered and not consistent with this charter”.55
Among these laws was the Family Law abhorred by most Somalis, especially
the religious groups.56 It contains 72 Articles organized under four headings.
These cover requirements relating to marriage and divorce, to children and
maintenance, to guardianship, tutelage, and representation, and finally to
succession. The decree that promulgated the Law maintained that it was being
enacted in accordance with “the first and second Charter of Revolution”.57
5555. See Article 38, paragraph 12 of the Transitional Charter of Somali Republic, 2000; and Article 71, Paragraph 2 of the Transitional Federal Charter of the Somali Republic, 15 September 2003. 5656. This Family Law became the symbol of secularism and suppression of the state. See Lewis, A Modern History of Somalia, 213.5757. Tahir Mahmood, Personal law in Islamic Countries (New Delhi: Academy of Law and Religion, 1987), 254.
16
According to Tahir Mahmood, the dominant opinion reflected in the Family
Law was based on the Shafi’i school. Nevertheless, careful examination of the
Law itself indicates that it went far beyond Shafi’i jurisprudence and stood
outside of Islamic law in some of its vital provisions. The most notable of these
were the requirement of obtaining a court’s consent in order to marry more
than one wife, limiting the amount of the dowry, cost sharing between the
bride and groom in the marriage, and sharing household assets in case of
divorce. Moreover, it curtailed the practice of easy divorce declarations by
men through requiring prior judicial authorization. The most dramatic change,
however, was the total disregard of the Islamic law of inheritance. A law was
enacted according to which equal rights were attributed to men and women
with respect to inheritance and which eliminated the list of heirs enshrined in
the Qur’anic verses.58 However, this Family Law was modified in 1989 so as to
conform to the Islamic principles and to distance it from the original secular
views it expressed.59 The ultimate character of the Family Law was its
openness to the wider modern ijtihad and adoption of the opinions of other
schools of Islamic jurisprudence.
4.3. Women as Presidents and Judges
The prospect of women becoming presidents and judges was the most
controversial issue in the Muslim jurists’ discourses. The majority view was to
deny women these rights. We will not delve into the details of this issue in the
present essay. We just note in passing that in undertaking to achieve this
outcome, the Somali women’s political action group was highly ambitious and
adventurous. Somalia does not have any legal precedents for women taking on
the role of judges, although some worked in the judicial systems of the Somali
5858. “Allah (thus) directs you as regards your children’s inheritance: to the male, a portion equal to that of two females: If only daughter, two or more, their share is two thirds of the inheritance: If only one, her share is a half”( 4: 11). See Abdullahi Yusuf Ali, The Meaning of the Holy Qur’an (Amana Corp., 1992).5959. In 1989, the controversial Family law of 1975 was modified to conform to the Islamic shari’a. See Judith Garner and Judy El-Bushra (eds) Somalia: The Untold Story, 232. Also pertinent here is the interview with Nurta Haji Hassan on 10 November 2005, Toronto, Canada. Nurta is a woman lawyer and was a member of the committee that drafted the Family Law.
17
state.60 Traditionally, judicial matters were confined to the domain of men, and
the traditional interpretation of Islamic texts concurred with this restriction.
Thus, in the absence of historical precedents, it was a social taboo to have
women advocating that they should be able to become judges. These actions
saw them labelled as instruments of Western feminist movements.
In spite of all these challenges and constraints, the women’s intention during
the Somali Reconciliation Conferences in Kenya in 2003 and 2004 was to see
the provision for them to become presidents and judges enshrined in the
National Charter. To achieve such a phenomenal outcome, women experts
were consulted and brain storming sessions were organized. International
organizations such as UNIFEM and international NGOs such as NOVIB-
Somalia worked very closely with the women activists. They offered advice,
training, and general support. After exhaustive discussions, it became clear
that from the cultural perspective, and given the norms of the Somalis, it was
most unlikely that this item on the women’s agenda would be achieved in the
conventional way.61
The response of the women’s political action group was to examine alternative
strategies and to come up with one that would not create conflict in the
conference. It would also need to be one that ensured the realization of their
full equality with men in all aspects of life, including the holding of presidential
and judicial positions. The prudent option was to lobby the Charter Drafting
Committee simply to respect gender sensitivities in the language of the
Charter. After about a week of discussions, the majority of the Committee
members accepted that they should accommodate the women’s demands
relating to this gender sensitivity. The proposal of the women appeared to be
rational and very simple to implement. It seemed to require little more than
rewriting every Article so that where the word “he” is found, it is changed to
6060. Interview with Nurta Haji Hassan on 10 November, 2005, Toronto, Canada. 6161. Interview with Asha Haji Ilmi on 15 November 2005, Boston, USA.
18
read “he/she”. This would also be in line with the requirement of equality for
all citizens as it had appeared in all historical Constitutions in Somalia.
The strategy was successful and brought about legal changes to the benefit of
women. The Transitional Federal Charter of the Somali Republic was adopted
on 15 September 2003 in Nairobi, Kenya. It comprised 14 Chapters and 71
Articles. Islam remained the “religion of the Somali Republic”62 and “Islamic
Shari’a ... the basic source for national legislation”.63 Against this background,
Article 15 provided for equal rights for all citizens of Somalia without
distinction relating to race, birth, language, religion, sex, or political affiliation
This included the full and equal enjoyment of all rights and freedoms. Article
29 required that 12 per cent of seats in the parliament be allocated to women.
Qualifications relating to presidential positions are included in Article 40,
which states that “any person shall be qualified and eligible to be elected the
president of the Somali Republic”. In terms of taking the oath of the
presidency, the gender sensitive wording of Article 42 clearly indicates that
women may occupy the position of President. Examining the Charter shows us
how well the strategy behind this outcome has worked. Article 42 states that
“such an oath shall be for the due execution of his/her office in a manner
prescribed herein”. Moreover, Article 43, Paragraph (a), reiterates this same
point. It states that “the president shall hold office for a term of 5 years
beginning from the date on which he/she is sworn in as President”.
Furthermore, in discharging or impeaching the President, Article 43,
Paragraph (c) stipulates that “such resolution shall have the effect for
removing the president from his/her office as from the date on which the
resolution is so passed”. The Constitution also includes in Chapter 10,
Judiciary Articles 54 to 64 with wording that is clearly gender sensitive. In
Article 55, Paragraph 2, it is stated that “a judge shall be removed form office
only for inability to perform the factions of his/her office …”.. Moreover, in
6262. Article 8, Paragraph 1. 6363. Article 8, Paragraph 2.
19
Article 59 dealing with the appointment of judges, Paragraph 3 states that “a
person shall not qualify to be appointed a judge of the supreme court unless:
(i) He/she is, or has been, a judge of the appeal Court …, or (ii) He/she is
advocate for high court of Somalia of not less than 5 years standing”.
In the strategy they adopted in the constitutional debates, women were not
only active in achieving provisions of particular interest to them. They
proposed and advocated the inclusion of other important legal provisions, such
as protection of the family, social welfare conditions, and environmental
protection. Having gained political and legal rights, women began to consider
more ambitious political projects. As a result, a woman became a candidate for
the presidential race in 2004. Currently, Somali women hold some ministerial
positions and they are now more visible in all aspects of life. Although the legal
barriers have been removed, the task of making these gains part of social
reality will requires a struggle that will occupy generations to come. Finally, all
the above advancements by women in Somalia depend for their full realization
on the functionality of the interim government. However, it remains divided
and in search of renewed reconciliation.
5. Conclusion
In the present paper, it has been shown how Somali women achieved the
objectives of their strategic agenda at the Somali Reconciliation Conferences
held in Djibouti in 2000 and in Kenya in 2003. Such direct and active
participation by women in the constitutional debates represents a remarkable
milestone that is unprecedented in Somalia. The key thesis that has been argued
here is that achieving this enhanced role for women resulted from the earlier
decade of the military regime’s policies that were favourable to their
empowerment. As a consequence, women were better educated and participated
in political activities. Their economic role, as well as their increased public
20
prominence, enabled them to gain more notice and respect within society.
Moreover, since the 1980s, women have been better educated with respect to
religion and were able to take on roles in modern Islamic activism. Ultimately,
the prominence and high level of political participation achieved by women at
the 2000 Somali Reconciliation Conference in Djibouti can be attributed to
several factors. These include the changed role of women during the civil war as
members of an emerging civil society, their becoming breadwinners of families
during this war, the rise to dominance of moderate Islamic discourse concerning
women, and the failure of armed faction leaders to monopolize reconciliation
conferences.
The present paper has also shown that Islam and its traditions did not represent
enduring obstacles to the participation of women in all aspects of life, including
politics. Over the period concerned here, religious conservatism weakened.
Moreover, the women adopted the prudent strategy of working from within the
Islamic paradigms. As an integral part of this endeavour, they extended the
interpretation of Islam to its extremes and used adept tactics that successfully
resulted in exceptional legal reforms. Eventually, there were no legal
impediments preventing Somali women from becoming the President of the
country or from sitting as judges of the Supreme Court. All these legal reforms
were gained through a concerted effort of lobbying and forging alliances within
appropriate delegates at the conferences.
It remains the case, nonetheless, that these political advances by women
depended on affirmative action and were a reward for their contributions during
the civil war. However, their prospects for a political future seem precarious
when it becomes necessary for them to participate in free elections without a
quota system. This is because patriarchal beliefs and structures persist in
Somali society and the political life of the country is still linked to clan interests.
In spite of this, their participation in the constitutional debates and the legal
reforms they helped to introduce will probably endure and provide a strong
21
motivation for future generations of women to make further advances in the role
of women in Somalia. In effect, the quota system, better education, and
enhanced economic participation will act as the safety valves that will ensure
the permanence of the achieved legal reforms.
22
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