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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 of the allocated 225 seats of
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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
power and introduced important legal reforms during the period from 2000 to

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1. There were an additional 20 appointed seats allocated as adjustment and comprise solutions,
but women were not included among these.
2
2. 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).
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3. 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.
4
4. Somalia is considered 99% Muslim with most people adhering to the Shafi’i school of
jurisprudence.
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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

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5. 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).
6
6. 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).
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7. 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).
8
8. 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).
9
9. An anthropologist who wrote her PhD on Somalia. See her Somali Sultanate: The Geledi City-
State over 150 Years (London: Haan Publications, 2002).
10
10. 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.
11
11. 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
by the colonial ethnologists and anthropologists. They argue that a nationalistic
12
12. Associate Professor of History, Wellesley College, Massachusetts. He has written many
academic articles on Somali women
13
13. 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).
14
14. Professor of Geography and Global Studies, University of Minnesota, USA.
15
15. 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.
16
16. 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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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, during the last 15 years. With

20
20. 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).
21
21. 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.
22
22. 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).
23
23. 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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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, progress in
women’s education, and an enhanced social and religious awareness of the
need for change in their place in society.
24
24. 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.
25
25. 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.
26
26. Fawzia Muse, “War Crimes against Women and Girls” in Somalia: The Untold Story, eds
Judith Garner and Judy El-Bushra, 2004, 69-89.
27
27. 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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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 failure of warlord-driven reconciliations during first
decade of the civil war. Moreover, the impact of the millennium development

28
28. Osseina Alidou and Meredeth Turshen, “Africa: Women in the Aftermath of Civil War,” Race
and Class, 41, 2000.
29
29. Ladan Affi, “Men Drink Tea While Women Gossip”, 106-108.
30
30. 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.
31
31. 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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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 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
32
32. 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”.
33
33. 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).
34
34. 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.
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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
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
35
35. 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.
36
36. 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.

37. See Zainab Mohamed , et al., “Post-War Recovery and Political Participation,” in Somalia:
37

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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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 and generous
paid maternity leave, together with the new Family Law instituted in 1975.40

38
38. 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.
39
39. Ibid., 35. The main reference law book for the Kadis in Somalia is “Kitab Al-Minhaj Li-Al-
Imam Al-Nawawi”.
40
40. 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.
11

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

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
41
41. 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”.
42
42. Ibid., Article 50.
43
43. Ibid., Article 98, Paragraph 1.
44
44. Paolo Contini, The Somali Republic, 59.
45
45. 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.
46
46. 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.
12

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 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

47
47. 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.
48
48. 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.
13

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 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
49
49. 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).
50
50. 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.
51
51. 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.
52
52. 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

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 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

53
53. 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.
15

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 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
54
54. Also, an interview with Mrs. Nurta H. Hassan on 28 October 2005.
16

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
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
55
55. 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.
56
56. This Family Law became the symbol of secularism and suppression of the state. See Lewis,
A Modern History of Somalia, 213.
57
57. Tahir Mahmood, Personal law in Islamic Countries (New Delhi: Academy of Law and Religion,
1987), 254.
17

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
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

58
58. “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).
59
59. 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.
60
60. Interview with Nurta Haji Hassan on 10 November, 2005, Toronto, Canada.
18

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 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
61
61. Interview with Asha Haji Ilmi on 15 November 2005, Boston, USA.
62
62. Article 8, Paragraph 1.
63
63. Article 8, Paragraph 2.
19

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 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
20

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 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.
21

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 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

Bibliography

Abdullahi, Abdurahman. Tribalism, Nationalism and Islam: Crisis of the Political


Loyalties in Somalia. MA thesis, Islamic Institute, McGill University, 1992.

Abdulle, Abdulqadir Adan. “Djibouti Peace Process: a non-clan approach of


distributing MPs.” Unpublished paper presented to the Somali Intellectual
Symposium, Somali Peace Conference, Djibouti, 2000.

Academy of Peace Development. The Impact of the War on the Family.


Somaliland: Hargeisa, 2002.

Adam, Hussein M. “Islam and politics in Somalia.” Journal of Islamic Studies 6


(1995): 189-221. Available from www.csa.com. Accessed 28 October 2004.

Affi, Laddan. “Men Drink Tea While the Women Gossip.” In Putting the Cart
before the Horse: Contested Nationalism and the Crisis of the Nation-State in
Somalia, edited by Abdi Kusow. Lawrenceville: The Red Sea Press, 2004.

Ahmed, Christine Choi. “Finely Etched Chattels: The Invention of Somali


Women.” In The Invention of Somalia, edited by Jumale Ahmed. Lawrenceville:
The Red Sea Press, 1995.

Ahmed, Jumale. The Invention of Somalia. Lawrenceville: The Red Sea Press,
1995.
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.

Beckman, Peter R., and Francine D’Amico, eds. Women in World Politics: An
Introduction. Greenwood Press, 1995.
23

Bryden, Matt. “No Quick Fixes: Coming into Terms with Terrorism, Islam, and
Statelessness in Somalia.” Journal of Conflict Studies 22 (Fall 2003).

Brons, Maria. “The Civil War in Somalia: Its Genesis and Dynamics.” Current
African Issues 11 (1991).

Constitution for the Somali Democratic Republic, 1979. Available from www.
Oceanalaw.com/NXT/gateway.dll/CCW/current/Somalia/Som_Constitution_D.11/4
/2005. Accessed 10 November 2005.

Contini, Paolo. The Somali Republic: an Experiment in Legal Integration. London:


Frank Cass & Company, 1969.

Fawzia, Muse. “War Crimes against Women and Girls.” In Somalia: The Untold
Story: The War through the Eyes of Somali Women, edited by Judith Garner and
Judy El-Bushra, 69-89. London: Pluto Press, 2004.

Gardner, Judith, and Judy Al-Bushra. Somalia-The Untold Story: the War Though
the Eyes of Somali Women. London: Pluto Press, 2004.

Gender profile in Somalia. Available from


http://www.womenwarpeace.org/somalia/ docs/somalia_pfv.pdf. Accessed 10
November 2005.

Hassan, Nurta Hagi. Interview on 25 October 2005.

Horn of African Center for Information and Studies. “Islah in Somalia: Views and
Policies on Major Contemporary Issues.” Unpublished paper, Mogadishu,
Somalia, 2003.
24

Ilmi, Asha Haji. Interview on 25 October 2005.

Kapteijns, Lidwien. “Women and Crisis of Communal Identity: The Cultural


Construction of Gender in Somali History.” In The Somali Challenge: From
Catastrophe to Renewal?, edited by Samatar Ahmed. Boulder: Lynne Reinner
Publishers, 1994.

Kapteijns, Lidwien, and Maryan Omar Ali. Women’s voices in a man’s world:
women and the pastoral tradition in Northern Somali Orature, c.1899-1980.
Portsmouth, NH: Heinemann, 1999.

Kusow, Abdi, ed. Putting the Cart before the Horse: Contested Nationalism and
the Crisis of the Nation-State in Somalia. Lawrenceville: The Red Sea Press,
2004.

Laitin, David D., and Said Samatar. Somalia: Nation in Search of a State.
Boulder: Westview Press, 1987.

Le Sage, Andre. “Al-Islah in Somalia: An analysis of modernist political Islam.”


Unpublished paper, 2004.

Lewis, I. M. A Modern History of Somalia: Nation and State in the Horn of Africa.
Boulder, Colorado: Westview Press, 1988.

Luling,Virginia. Somali Sultanate: The Geledi City-State over 150 Years. London:
Haan Publications, 2002.

Marshal, Ronald. “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, 2001.
25

Menkhaus, Ken. “Political Islam in Somalia.” Middle East Policy 9: 109-123.


Available from www.csa.com. Accessed 28 October 2004.

Ministry of Information, Somali Republic. Constitution of the Somali Republic.


National Printing Agency, 1960.

Ministry of National Planning. Statistical Data of Somalia in Figures. Mogadishu:


National Printing Agency, 1988. Available from www.genie.og/genie-crises-
links/peer/pdf/SIFEDU3.pdf. Accessed 10 November 2005.

Mukhtar, Mohamed. “Islam in Somali History: Fact and Fiction.” In The Invention
of Somalia, edited by Jumale Ahmed. Lawrenceville: The Red Sea Press, 1995.

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).

NOVIB-Somalia. “Arab Donor Policies and Practices on Education in


Somalia/Somaliland.” September 2004. Available from http://www.somali-
civilsociety.org/downloads/NOVIB-WAMY-FINAL.pdf. Accessed 10 November
2005.

NOVIB-Somalia. “Mapping Somali Civil Society.” Nairobi: Kenya, 2003. Available


from http://www.somali-
civilsociety.org/strength/phase1_Mapping%20somalicivilsociety.asp. Accessed
10 November 2005.

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.
26

Rage, Abdurahman O. “Somali NGOs: a product of crisis.” In Mending Rips in the


Sky, edited by Adam and Ford. Asmara: Red Sea Press, 1997.

Rodriguez Bello, Carolina. “Women and Political Participation.” November 2003.


Available from http://www.whrnet.org/docs/issue-women-politics.html. Accessed
10 November 2005.

Sorensen, Brigitte. Women and Post conflict Reconstruction: Issues and Sources.
The War-Torn Societies Project, Occasional Paper No. 3. Geneva: UN Research
Institute for Social Development, June 1998.

Samatar, Abdi Ismail. “Destruction of State and Society in Somalia: Beyond the
Tribal Convention.” Journal of Modern African Studies 30 (1992): 625-647.

Samatar, Ahmed. “The Curse of Allah: Civic Disembowelment and the Collapse
of the State in Somalia.” In The Somali Challenge: From Catastrophe to
Renewal?, edited by Ahmed Samatar. Boulder: Lynne Reinner Publishers, 1994.

Samatar, Ahmed, ed. The Somali Challenge: From Catastrophe to Renewal?


Boulder: Lynne Reinner Publishers, 1994.

Tahir, Mahmood. Personal Law in Islamic Countries. New Delhi: Academy of Law
and Religion, 1987.

Transitional Federal Charter of the Somali Republic of 2003. Unpublished English


version.

Yusuf, Ali. The Meaning of the Holy Qur’an. USA: Amana Corp., 1992.

Zainab, Mohamed, Shukri Hariir, Zakia Alin, Faiza Warsame Amina Warsame,
Maria Brons, and Sacdia Abdi. “Post-War Recovery and Political Participation.” In
27

Somalia-the Untold Story: The War through the Eyes of Somali Women, edited
by Judith Garner and Judy El-Bushra. London: Pluto Press, 2004.