Max Planck Institute for Comparative Public Law and International Law

Djibouti, 6 – 10 February 2010

 

 

Executive Summary

Funded by the Foreign Office of Germany and in co-operation with the Somali Ministry for Constitution and Federal Affairs, the Max Planck Institute for Comparative Public Law and International Law (MPIL) hosted a conference on the integration of Sharia law within the future Somali constitution. The conference under the auspices of Prof. Dr. Dr. Rüdiger Wolfrum (MPIL) took place in Djibouti from 6 to 10 February 2010. The participants were Somali members of the Ulima, the Transitional Federal Parliament (TFP) and the Transitional Federal Government (TFG). A panel of international legal experts and elder statesmen held introductory presentations on various constitutional issues. All panels were co-chaired by members of the Somali Ulima. The Djibouti Government, UNPOS, UNDP Somalia, NDI, AWEPA had sent representatives as international observers. The opening and the closing sessions were covered by the regional media (radio and TV).

 

By targeting the Somali Ulima as a primary audience, the conference has achieved its primary objective of opening the door for a dialogue with Islamic groups who have, up till now, not been integrated into the ongoing Somali constitutional process. Through the discussion of constitutional issues, the conference accomplished to engage the Ulima in a constructive exchange of ideas with members of the TFP and the TFG. By reaching out to the Ulima, the symposium has launched the civic education activities planned and carried out by the members of the UNDP-led consortium for the support of the Somali constitutional process.

 

Programme

The conference was dedicated to the topic “Sharia Law in Constitutions of Muslim Countries: Challenges for the Somali Constitution-Building Process”. On the first day, Prof. Kamali (Malaysia) introduced the participants to “Sharia and the Separation of Powers”. He explained the Sharia provisions corresponding to and confirming the Western concept of separation of powers and developed perspectives for the Somali constitutional process on the basis of examples from a vast array of constitutions of Muslim countries. On the second day, Prof. Khalil (Sudan) spoke about “Sharia and Human Rights”. His presentation covered the Sharia perspective on human rights as a general concept. He contextualized human rights within the framework of democratic states, the international order and the rule of law. On the third day, Prof. Ebeku (Nigeria) and Prof. Khan (Pakistan) presented papers on to “The Judiciary in Constitutions of Muslim Countries”. This session focused on models for setting up and guaranteeing the independence of the judiciary in Muslim countries. On the fourth day, Prof. Wolfrum introduced the participants to the examination of the “Constitutionality and Sharia Compatibility of Laws”.

 

Discussion Results

The participants embraced the purpose of the conference, i.e. the exchange of information on constitutional law developments in Muslim countries with a view to facilitating the ongoing Somali constitutional process. In particular, the participants appreciated the examples from Muslim countries provided by the speakers.

 

All participants agreed that the Sharia was to be the basis of any future Somali legal system. During the conference a consensus was built that the Sharia allows for having a constitution besides the Sharia itself, and that the constitution would be instrumental for implementing the Sharia, creating and securing justice, and re-establishing the state of Somalia.

 

The participants agreed upon the central importance of constitution-building for the peace and reconciliation process in Somalia. They emphasized the importance of the procedural aspects of the ongoing constitution making, such as the Somali ownership and the required inclusiveness of the process. Several members of the Ulima attributed state failure and civil strife in Somalia to the lack of Somali ownership in prior constitutional processes. All agreed that, at the end of the day, the Somali people will decide if they accept the constitution.

 

With respect to the separation of powers, the participants identified the roots of a homologue concept in the Sharia: Sharia provisions curbing the absolute power of the ruler and establishing his accountability were construed as an Islamic command to make accountability effective and to limit the power of specific state organs. As regards the technical details of constitutional provisions on power sharing, e.g. the structure and composition of a future Parliament consisting of one or two chambers, the participants saw the need for further discussion. Most participants were inclined to call for strong leadership. However, it was also argued that the distribution of powers ought to be balanced in order to prevent the abuse of power by corrupt or otherwise immoral leaders.

 

The conference has shown that a crucial element of any future constitution will be a functioning, effective and fair justice system. Sharia and the constitution were seen as complementary elements for achieving this objective. In this context, it was argued that justice could only be achieved through increased transparency, open and independent processes for deliberation, the eradication of marginalization and a clear focus on equality. A vast majority of the Ulima members emphasized that the required adherence of the judiciary to the Sharia implied the necessity to implement its provisions on hudud crimes. At the same time, some members of the Ulima emphasized that the criminal justice system must equally preserve human dignity.

 

All participants agreed that human dignity is not only a Western concept but also a principle of Sharia. Accordingly, every human being must be accorded the same dignity: Men and women, believers and nonbelievers equally enjoy human dignity. It was argued that the concept of human dignity was the root of all further human rights. As a result, e.g., torture was seen to be prohibited by Islam. The participants agreed that Islamic human rights theory was closer to the African Charter of Human and Peoples’ Rights, in so far as it balances individual rights with individual duties towards the family, the community and the state, than to recent developments in European human rights theory, which tends to stress individual rights. Some participants pointed out that human rights standards should always be interpreted in their specific cultural context and not as predefined in an undisputable manner.

 

All participants shared the position that cultural traditions and customs need to be taken into account in order to better understand their relationship with Sharia and societal organization in the specific Somali setting.

 

With respect to a decentralized nature of the future Somali order, the participants’ positions were inconclusive. Some members of the Ulima questioned the Sharia compatibility of federalism, others derived federalism as a requirement by the Sharia commands on justice. However, nobody questioned the nature of federalism as one form of power sharing.

 

As regards the 4,5 formula, some Ulima members questioned its Sharia compatibility.

 

Achievements

In detail, the conference has attained its objectives to

• facilitate a constructive exchange between the Ulima, the TFP and the TFG on specific constitutional topics;
• overcome the Ulima’s reservations about the Somali constitutional process and the concept of constitutionalism;
• identify and confirm uncontroversial legal issues to be included within the future constitution;
• open the door for a dialogue with Islamic groups who have, up till now, not been integrated into the ongoing constitutional process;
• provide a forum to representatives of these groups, thereby making them realize that their voices are heard and that their ownership of the ongoing constitutional process is universally accepted;
• enhance the legitimacy of the Somali constitutional process by increasing its inclusiveness; and
• start the civic education activities planned and carried out by the members of the UNDP-led consortium for the support of the Somali constitutional process.

 

Future Perspectives

The integration of all Islamic and other civil society groups into the Somali constitutional process is a momentous task that cannot be achieved by a single conference. Within a broader international strategy of sequencing various international efforts to this effect, the MPIL symposium has been the first event, breaking the ice and starting the dialogue. Further conferences organized by other members of the UNDP-led consortium will be required.

 

Attachments

• Conference Programme;
• Presentations by Profs. Ebeku, Kamali, Khalil, Khan and Wolfrum;
• Conference reader with legal materials;
• Conference reader with academic writing.