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

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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”.

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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.

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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.

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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.

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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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