The Rule of Law in Fragile States: Dictatorship, Collapse, and the Politics of Religion in Post‐Colonial Somalia

Somaliland had united with Somalia a few days after colonial rule ended in 1960

Somalilandsun: The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument.

First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government’s interpretation of Islam.

Second is the rise of Islamic courts in Mogadishu, Somalia’s capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully.

Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.

Legal scholar Richard Abel has argued that the fate of the rule of law in the world’s democracies rests not in courts but in politics, specifically in the whims of the political parties that maintain control. In the United States (US), for instance, party control of the White House and Congress was the largest determinant of government torture and surveillance programmes in the 2000s. According to Abel, American elected officials at the time breached their commitments to the rule of law – a system of government in which law constrains politics, not the other way around – while cloaking their actions in legal garb.1 But what of other regions of the world that confront post‐colonial civil war and authoritarian rule? In the world’s most fragile states, law, politics, religion, and violence seem inseparable, and debates rage over who has the power to interpret religious texts and traditions. In these places, I argue in this article, the fate of the rule of law rests in religion and religious politics.

To illustrate this argument, this article presents three defining periods of post‐colonial Somali legal history, drawn from my fieldwork in the Horn of Africa. These periods offer law and society scholars an opportunity to understand the ways in which people shore up and tear down the rule of law. Somalia has consistently been ranked as the world’s most or second most fragile state.2 An authoritarian regime governed from 1969 until 1991, when dictator General Mohamed Siad Barre escaped a civil war. Since the historic collapse of state institutions in 1991, Somalia has had either no government or competing, fledgling governments.

The first important period – Siad Barre’s dictatorship (1969–1991) – shows how authoritarian regimes use religious discourses to justify their political and legal decisions. In 1969, nearly a decade after independence from Italian and British colonial rule, Siad Barre seized power. He allied his regime with the Soviet Union and proclaimed the compatibility between shari‘a (commonly translated as Islamic law) and what he called ‘scientific socialism’. Demonstrating Siad Barre’s conviction and the brutality of his iron fist, in 1975 the regime executed ten religious leaders after their public refutation of his interpretation that shari‘a was a source of his unfettered authority. For nearly a generation, from 1969 until the regime fell in 1991, Siad Barre used his own version of shari‘a to rule by law and systematically dismantle any attempts in the young nation to build the rule of law.

The second period – the rise and union of Somalia’s Islamic courts (1991–2007) – shows how community leaders turn to religious law to create stability amid social and political breakdown. In the 1990s and 2000s, warlords and their militias patrolled the streets of Somalia’s capital city, Mogadishu. In the absence of state power, disparate religious courts emerged. These courts provided spaces for people to resolve their disputes peacefully. They were also administrative bodies. By cleaning up city streets and sentencing criminals, the Islamic courts helped to build a path towards order and the rule of law. As the courts strengthened their power and legitimacy, they joined their militias together and expelled Mogadishu’s most notorious warlords. The Islamic courts’ experiment in grassroots state building towards the rule of law was cut short by military intervention by foreign powers distrustful of the intentions of an Islamic state.

The third period – the breakaway of Somaliland since 1991 – illustrates how civil war survivors rebuilding the state use religious principles for peace. Somaliland had united with Somalia a few days after colonial rule ended in 1960. It reasserted independence in 1991. Somalia and the rest of the world’s governments still designate Somaliland as a region of northern Somalia rather than as a sovereign state. However, Somaliland’s founders in the 1990s created a political and legal system that has made it a beacon of regional stability and progress. Their system is built upon a rejection of authoritarianism, a prohibition of spurious ‘national security’ courts that target activists, and a constitutional architecture that advances Islamic human rights principles. The strategic intentions behind Somaliland’s Islamic legal arrangements have largely been invisible to international lawyers and aid workers, who have remained focused on training Somali judges, lawyers, and litigants to apply secular law.

In arguing that the rule of law’s fate rests with religion in fragile states, this article offers two public policy takeaways. First, international lawyers and aid workers seeking to build peace in war‐torn regions must study and understand local legal history. Foreign aid workers have concealed, marginalized, or abandoned religion, treating it as an exceptional category rather than one historically linked to the processes that develop the rule of law. Second, international lawyers and aid workers must reconsider the power of religious faith. Such faith is a lived experience for those whom they purport to assist, with the potential to transform law, politics, and society in a way that the promises of the rule of law cannot do. Continue reading