CLASSICAL FIQH RULES OF EVIDENCE

In classical Islamic jurisprudence, as in Roman law, the burden of proof lies with the plaintiff. In trying to convince the qāḍī to vindicate his claims, the plaintiff can present three main types of evidence.

The first category of evidence is witness testimony. To meet the burden of proof through witness testimony, the plaintiff must present a minimum of two male witnesses, or one male witness and two female witnesses. Additionally, all witnesses must be perceived to be trustworthy and good Muslims.

The second category of evidence is the defendant's admission of guilt. An admission must be made voluntarily, in court, in the presence of the qāḍī, or it must be restated in court if it was uttered on an earlier occasion. In lieu of a court restatement, a witness may testify to an admission made by the defendant outside the court, as long as the witness is deemed reliable. Interestingly, police officers cannot testify to a defendant's admission, because police are representatives of the sultan, a relationship that may influence their reliability. However, if someone else—for example, a caretaker—is present at the moment of confession, that person may submit a witness statement.Footnote ⁵

The third category of evidence is the oath.Footnote ⁶ If the plaintiff has brought valid and credible witnesses in support of his claims, or if a defendant has confessed his guilt, the qāḍī will ask the plaintiff to swear that he has told the truth. If he does this, judgment is issued in his favor. However, if the plaintiff fails to bring sufficient evidence of his claim, the defendant will be asked to take an oath that his testimony is true. If he complies, he is acquitted without any charge.Footnote ⁷

Substantive Law and Classical Fiqh

According to the stories of the informants, criminal law as applied by al-Shabaab seems to be based on classical Islamic legal doctrines. Its cornerstone appears to be the offenses and punishments explicitly described in the Qu'rān and the haḍīth.

In classical fiqh, criminal law is not a single, unified branch of law, but is laid down in three separate chapters. The first chapter includes offenses against a person such as murder and bodily harm. This category is further subdivided into provisions regarding retaliation (qiṣāṣ) and financial compensation (diya). The second chapter treats offenses with mandatory, fixed punishments outlined in the Qu'rān and/or the haḍīth (i.e., the ḥudūd [sg. ḥadd] [“limit” or “restriction”] punishments). These offenses, namely theft (sariqa), banditry (al-ḥirāba), unlawful sexual intercourse (zinā), unfounded accusations of zinā (qadhf), consumption of alcohol (khamr), and apostasy (ridda), are perceived by the classical scholars to be violations of the claims of God rather than interpersonal offenses (ḥuqūq Allāh).Footnote ⁸ The third category of crimes, which will not be discussed in this article, includes discretionary punishment for sinful and forbidden behavior and for acts that endanger public order or state security (ta'zīr and siyāsa).Footnote ⁹

Camels and Homicide—Compensation and Retaliation in al-Shabaab Courts

The qāḍī courts of al-Shabaab hear many cases involving bodily harm and murder. According to the fiqh literature, in principle, these crimes should be punished by either qiṣāṣ (retaliation) or diya (compensation). If the plaintiff brings sufficient evidence in a case of this category, classical doctrine prescribes that it is his prerogative to demand retaliation or blood money (diya) or to pardon the perpetrator. Retaliation in cases of murder or bodily harm may, however, only be demanded if the offense proves to be intentional.Footnote ¹⁰ Both the Shāfi'ī and the Ḥanbalī school hold that “[h]omicide or bodily harm is intentional if both the act against the victim and its results (death or injury) were intended.”Footnote ¹¹ If the act is assessed by the qāḍī to have been accidental, the perpetrator must pay diya.Footnote ¹²

Qiṣāṣ, retaliation for bodily harm, means that the perpetrator will suffer harm equivalent to that which he inflicted on the victim, according to the principle of “a life for a life, an eye for an eye and a tooth for a tooth.”Footnote ¹³ In homicide cases, the murderer will be killed, ideally in the same way as the victim was killed. The legal schools differ on whether the victim or his family may carry out the punishment under supervision by the legal authority, or whether the execution must be done by an official executioner.Footnote ¹⁴

In cases of qiṣāṣ, the general rules of evidence are stricter than the standard means of proof outlined above. Neither the testimony of one witness combined with the plaintiff's oath, nor the defendant's refusal to swear an oath, is valid.Footnote ¹⁵ Likewise, circumstantial evidence is not accepted.Footnote ¹⁶ These cases require the testimony of two witnesses who have actually seen the act, reliable witness testimony about the defendant's confession of guilt made outside the court, or a confession by the defendant made in court.Footnote ¹⁷ Moreover, a perpetrator cannot be sentenced unless he knew that the act was an offense, which means that minors up to the age of pubertyFootnote ¹⁸ and the insane are exempt from liability.Footnote ¹⁹

An insane person or a minor may, however, be required to pay diya for causing accidental physical harm because liability in diya cases does not require intent.Footnote ²⁰ In the adjudication of diya, normal rules of evidence are followed, because such cases are considered to be financial, not punitive in nature. In court cases where the perpetrator kills or wounds by accident, the main concern is settling the amount of compensation, which depends on the status of the victim.Footnote ²¹ The standard sum against which everything is valued is one hundred camels, or an equivalent sum of money, which is the diya for killing a free Muslim man.Footnote ²² The value for a woman is fifty camels, half that of a man.Footnote ²³ In cases of bodily harm, the amount of diya also depends on which limbs or organs are damaged. If there are several injuries, the sum is cumulative, and the amount of compensation may be greater than the full blood price of one hundred camels.Footnote ²⁴ Despite these set standards, the amount of diya is negotiable between the litigants.Footnote ²⁵

Cases of bodily harm and murder in al-Shabaab courts, as reported to the author, indicate that the qāḍī courts more or less demand evidence as prescribed by classical doctrine. For example, in a case tried in the provincial court in Kismayo, an al-Shabaab militiaman was accused of having shot an innocent civilian in the thigh. The Ḥisbah (al-Shabaab's police force) brought four witnesses for the prosecution, namely the other militiamen who had been present at the time of the shooting. After the witness testimonies had been heard, the accused admitted to the crime. The aggrieved person was then given the opportunity to choose between diya and qiṣāṣ, which would have allowed him to inflict on the offender the same kind of wound as the offender had inflicted on him. The victim chose to receive diya, which in this case was five camels from the victim's family.Footnote ²⁶

In another court case, “Shankar”Footnote ²⁷ was accused of homicide and brought before a court in Dinsoor, in the Bay province. Shankar was accused of having shot and killed another man. What is striking about this case is that Shankar had admitted to the crime in prison prior to the court hearings. However, when he arrived in court, he withdrew his confession, claiming that he had confessed only to escape the torture to which he was subjected. In court, Shankar pleaded not guilty and explained that he had shot the victim accidentally after a quarrel over an old debt. To support his claim, Shankar brought several eyewitnesses who confirmed his account of what had taken place. Because the prosecutor did not have any evidence apart from the previous confession, the qāḍīs decided that the murder was unintentional, thus preventing the imposition of retaliation. After a discussion between the families of the two parties, the qāḍīs sentenced the perpetrator to pay USD 7,000 to the family of the deceased.Footnote ²⁸

Ḥadd Crimes—Violation of God's Rights?

While criminal punishments in the cases of qiṣāṣ and diya reported to the author generally conform to classical fiqh doctrine, the majority of the ḥadd cases examined clearly deviate from doctrine in several respects.

According to Wael B. Hallaq, premodern Islamic jurists were motivated by the maxim, generated from a haḍīth text of the Prophet, that fixed ḥudūd punishments had to be “averted at the existence of the slightest doubt.”Footnote ²⁹ Beginning with this principle, the jurists outlined strict rules of evidence, in addition to a number of procedural requirements, which had to be fulfilled before a ḥadd punishment could be enforced. This complexity is especially evident in cases concerning adultery, robbery, and theft, as these cases receive the most severe punishments in the sacred texts. As a consequence of these procedural and evidentiary barriers, these harsh punishments were, in practice, almost impossible to apply. Rather, these punishments functioned primarily as a means to deter the public from committing these crimes.Footnote ³⁰

Although a court case may be initiated by any Muslim, including the qāḍī, the classical regulations related to the ḥadd crimes clearly make it difficult for the courts to obtain a conviction. First, the rules concerning evidence in these cases are even stricter than they are in cases of qiṣāṣ. For example, a confession has to be explicit and precise in describing the unlawful action, and only confessions made in court are valid.Footnote ³¹ This is to ensure that the confession is made voluntarily.Footnote ³² Second, the qāḍī must inform the accused of the right to retract a confession at any time during the trial, right up until the moment the punishment is imposed. A retraction will invalidate the conviction.Footnote ³³ The situation is similar with regard to testimony; a retraction of a testimony by a witness will nullify a sentence in a ḥadd case.Footnote ³⁴ Third, the qāḍī cannot apply the fixed ḥadd punishment in cases where there is uncertainty (shubba) regarding the facts.Footnote ³⁵ For example, if a woman accused of adultery claims to have been impregnated while asleep, the qāḍī cannot impose the fixed ḥadd punishment.Footnote ³⁶ Nor can the qāḍī do so if there is uncertainty regarding details of the law: for example, stealing something from a child in the belief that one is entitled to the property.Footnote ³⁷

As a consequence of these strict rules, the most severe punishments, like stoning and amputations, were rarely applied in the premodern qāḍī courts. Instead, ḥadd cases were often tried in non-sharī'a courts.Footnote ³⁸ These courts were not bound by the strict rules of fiqh doctrine and could therefore take into consideration circumstantial evidence and issue other penalties, such as imprisonment or fines.Footnote ³⁹ Another procedure for treating such cases, and one that was frequently applied in the Ottoman legal system, was for the qāḍī to issue punishments according to personal discretion or to pass sentence under provisions of the so-called qānūn-name. Qānūn-name were decrees issued by the sultan on matters of criminal law, and which to a great extent came to regulate the work of the qāḍī.Footnote ⁴⁰ Under this system, a combination of lashing and fines became the predominant form of punishment in ḥadd cases.Footnote ⁴¹

The court cases reported in the al-Shabaab-dominated areas indicate that jurisdiction over ḥadd crimes belongs largely to the qāḍī court, much as it did in the Ottoman legal system. But in contrast to Ottoman custom, the al-Shabaab qāḍīs quite frequently seem to apply fixed sharī'a punishments and apparently do not believe that they are restricted by secular regulations such as the qānūn-name.

In many respects, the al-Shabaab qāḍīs resemble the qāḍīs of the Saudi Arabian legal system, who enjoy wider jurisdiction in criminal cases, including ḥadd cases, than that prescribed by classical doctrine.Footnote ⁴² However, although Saudi Arabia has frequently been criticized by human rights organizations for the application of ḥudūd punishments,Footnote ⁴³ the number of ḥudūd executions has been relatively low.Footnote ⁴⁴ According to Frank E. Vogel's detailed study of the Saudi judicial system during the 1980s and early 1990s, the main reason for the low number of executions is that Saudi judges follow the strict procedures and requirements of fiqh. Vogel shows that, during the eleven years from May 1981 to April 1992, there were only four executions by stoning and forty-five amputations for theft, an average of one stoning every three years and four hand amputations each year.Footnote ⁴⁵

In comparison, although it is not possible to ascertain the exact number of convictions and punishments in ḥadd cases in al-Shabaab-dominated areas, it appears that from October 2008 to June 2011, al-Shabaab courts ordered at least eight executions by stoning, twenty-three amputations for theft, and fifteen amputations for banditry.Footnote ⁴⁶ Due to difficulty in accessing data, it is quite possible that the numbers are higher. Yet based on these numbers, the averages come to three stoning executions, nearly nine amputations for theft, and nearly six amputations for banditry per year—more than eight times higher than the Saudi average for stoning, and more than double the Saudi average for amputations for theft.

While realizing that this sample may not reflect the actual number of cases, we also see a wide divergence in these two jurisdictions when total numbers are considered. In Saudi Arabia from October 1982 to October 1983, there were 4,925 convictions for theft, for which two hands were amputated. The remaining convictions were assigned ta'zīr punishments, such as lashing or imprisonment. Of 659 convictions for adultery, sodomy, and sexual assault in Saudi Arabia during this period, no stoning was inflicted.Footnote ⁴⁷ By comparison, there is only one eyewitness report of adultery from al-Shabaab courts of the convicted receiving ta'zīr punishment rather than the prescribed ḥadd punishment (stoning for married persons and one hundred lashes for unmarried persons). In theft and banditry cases, there is no reported case of the convicted defendant receiving any punishment other than the prescribed ḥadd punishment (amputation). It must be noted that the absence of examples does not preclude the existence of such cases. A possible explanation for the absence of reported cases of ta'zīr punishments is that executions by stoning and amputations draw media attention and are thus more widely known. It may also be the case, as my sources suggest, that application of ta'zīr punishments in ḥadd cases has been limited.

The fact that the number of ḥudūd punishments in al-Shabaab territory is so high suggests that the al-Shabaab qāḍīs ignore some of the provisions and requirements outlined in classical doctrine that are prerequisite to imposing this punishment. In classical doctrine, ḥadd crimes are very narrowly defined, thus they are difficult to apply. For example, in the case of the ḥadd crime of theft (sariqa), the stealing must be done surreptitiously (e.g., during the night), and prior to the theft, the stolen goods must have been properly stored or guarded (e.g., in a locked house or shop).Footnote ⁴⁸ Therefore, anyone who snatches goods from a market stall in broad daylight has not committed theft according to classical Islamic jurisprudence. Additionally, the stolen objects must exceed a minimum value (niṣāb), which is set at one quarter of a dinar.Footnote ⁴⁹ According to the Mālikī, Shāfi'ī, and Ḥanbalī schools, this is equal to the current market price of 1.06 grams of gold at the time of the theft.Footnote ⁵⁰ Further, the ḥadd penalty cannot be inflicted on people who steal out of hunger, a provision made by the second caliph, Umar Ibn al-Khattab (d. 644), who ordered the suspension of the prescribed ḥadd punishment during a famine.Footnote ⁵¹ Neither can ḥadd punishment be applied if a thief returns the stolen property before the final judgment.Footnote ⁵²

In several of the theft cases described by the informants, the al-Shabaab qāḍīs obviously adjudicate without taking these provisions into account. For example, in a case tried at the Bakara market in Mogadishu, a man was sentenced to amputation of his right hand after he was convicted of not paying back a business loan. The accused had received USD 7,000 from the complainant as a loan in order to start his own business. The accused had then spent all the money and denied having received any loans at all. The complainant went to court; when the trial started, she brought one witness who claimed to have been present and to have witnessed the money changing hands. The qāḍīs found this to be sufficient evidence and convicted the man of theft.Footnote ⁵³

In this case, in addition to ignoring classical doctrine regarding the number of witnesses required for a ḥadd punishment, the qāḍī court neglected to acknowledge that this crime falls entirely outside the classical definition of sariqa, as it does not represent an act of stealing conducted surreptitiously. A classical manual by the Shāfi'ī scholar Ahmad ibn Naqib al-Misri (d. 1368) explicitly states that there can be no amputation in cases where the offender is “appropriating something by disavowal, i.e. denying that the victim loaned or entrusted him with such and such a thing.”Footnote ⁵⁴

Characteristic in the ḥadd cases described by my informants is the extensive use of circumstantial evidence. Except in zina cases, where the Mālikī school accepts the pregnancy of an unmarried woman as proof of fornication,Footnote ⁵⁵ and in khamr cases, where the Mālikī and Hanbali schools accept the claims of two witnesses that an accused reeked of alcohol as sufficient proof for shrub al-khamr,Footnote ⁵⁶ the classical doctrine does not approve of the use of circumstantial evidence in ḥadd cases.Footnote ⁵⁷ However, the cases examined indicate that such evidence is widely employed in the qāḍī courts of al-Shabaab. For example, in a case tried in one of the Mogadishu courts, a man, “Fuad,” and a woman were sentenced to one hundred lashes for fornication after being observed in the same car at the beach by al-Shabaab militiamen guarding the area. In court, the prosecutor brought as witnesses two men who had been nearby at the time of the arrest. Fuad claimed that neither the witnesses nor the militiamen had seen actual fornication taking place; they had seen only the two sitting in the same car. Both Fuad and the woman denied that sexual activities were taking place. Nevertheless, both were sentenced to receive one hundred lashes for fornication.Footnote ⁵⁸

Another striking feature in some of al-Shabaab's ḥadd cases is that the qāḍīs simply announce that the accused has confessed to the crime, thereby refusing him the opportunity to defend his case. This happened in the case of “Roble” and three other young men who were sentenced to cross-amputation for robbery on June 22, 2009, in Mogadishu. Instead of a proven confession, the chief qāḍī displayed some pistols and mobile phones to the large audience present as “evidence” to support the allegations. Three days later, cross-amputation of the four youngsters was carried out without any pain relief. Then, four nights later, a leading al-Shabaab official, Fu'ad Shangole, visited the house where the boys were held in custody and claimed that their legs were amputated too close to the feet. Using a plumber's saw, he cut three additional fingerbreadths off their legs without giving them any kind of pain relief.Footnote ⁵⁹

Roble said that he had never admitted any crime at all, not even while in prison prior to the “trial.” He claims, in fact, that he only learned of the accusations against him a short time before the public trial took place. According to Roble, his case was not about robbery at all; rather, it served as a means to punish him for not joining the al-Shabaab militia as many of his friends had done.Footnote ⁶⁰ Similar claims have been made by other convicted defendants. For example, the brothers Sayeed and Osman Ibrahim, who faced cross-amputation after being accused of banditry in Kismayo on October 15, 2009, claim they are innocent and are convinced that they were punished for political reasons.Footnote ⁶¹

Sharī'a as a Means or as an End?

The fact that infringements of the sharī'a and extra-judicial killings are committed in Somalia is hardly surprising. Though it has established a kind of state administration, al-Shabaab is first and foremost a militaristic organization that does not hesitate to use violent means in order to gain control. Many of its members who enforce the law are young and poorly educated, and the level of legal-religious education and training among the al-Shabaab qāḍīs and officials appears to vary. Al-Shabaab uses corporal punishment as a strategy to gain control and security by inspiring fear in the public. However, these factors do not fully explain why the al-Shabaab qāḍīs seem to deviate from classical doctrines in the ḥadd cases described to the author, while they generally seem to apply classical doctrine in the cases of bodily harm and homicide described by the informants. In order to understand this discrepancy, one must understand the ideology of al-Shabaab, the symbolic importance of the ḥudūd punishment, and the importance of the clan in Somali politics.

Al-Shabaab is clearly inspired by Salafi thought. Essential to Salafism is the notion that that the world is in a state of decay because it has deviated from Islam's original purity as practiced by the first Muslim generations, al-salaf al-ṣāliḥ (the pious ancestors).Footnote ⁶² In order to respond to this decay, Salafis hold that Muslims must return to the Qu'rān and the haḍīth (the Sunna, i.e., the path or example of the Prophet Muhammad) as the only models for the right behavior in a modern world.Footnote ⁶³ Whatever is not based on these foundational religious texts should be purged from society.Footnote ⁶⁴ When al-Shabaab destroys Sufi graves, kills Christian converts, imposes full-body covering on women, prohibits watching TV, separates the sexes on public transportation,Footnote ⁶⁵ and so forth, it is obviously acting under the influence of Salafi thought and perceives itself to be an Islamic actor striving to establish a pure Islamic society. Al-Shabaab states in one of its propaganda pamphlets: “Allāh has opened us [al-Shabaab] a wide door to carry out this responsibility in order to protect this society from immorality and guide it towards loftiness.”Footnote ⁶⁶

A central concept in Salafi thought is the belief in the oneness of God, tawḥīd.Footnote ⁶⁷ One of the aspects of this concept is the notion that God is supreme and entirely unique, and that he does not share any characteristics or powers with humans or any other of his creations.Footnote ⁶⁸ He is also the supreme legislator, which obliges all humans to follow his commands (i.e., the holy sharī'a) in their entirety.Footnote ⁶⁹ The idea that humans can legislate contradicts the notion that legislation is a domain reserved for God alone. Ideologies or institutions that suggest the supremacy of human-made laws, such as secularism or state-governed religions, are therefore rejected and eliminated by the Salafis.Footnote ⁷⁰ It is no surprise that al-Shabaab states: “We want to implement sharī'a completely—every single element of it. That's what the movement stands for.”Footnote ⁷¹

In an al-Shabaab pamphlet, the “[i]mplementation of the Hudood, through which Allah granted us the ability to keep roads secure and ensure peace in a way unseen in Somalia for decades,”Footnote ⁷² is listed as one of the group's goals. Thus, besides the practical effects of increasing security and creating law and order, Islamic criminal law, especially enforcement of the ḥudūd punishments, plays an important symbolic role. As Rudolph Peters argues, ḥudūd punishments serve, in a sense, as the litmus test for deciding whether or not Muslim governments can be considered truly Islamic.Footnote ⁷³ The ḥudūd punishments, visible laws that find solid textual basis in the Qu'rān and the haḍīth, and which clearly counter modern Western legal thought, are seen as evidence of a truly Islamic government. As such, public executions of alleged thieves, adulterers, and robbers are important to al-Shabaab not only to punish offenders and discourage future violations, but also to signal that al-Shabaab is a true guardian of sharī'a and, therefore, a legitimate Islamic government.

But this symbolic argument contains a paradox: when al-Shabaab, or more precisely, the al-Shabaab qāḍīs, try criminal cases, they face problems similar to those their predecessors have faced: namely, the strict fiqh requirements of evidence and procedure in ḥadd cases. Motivated, as previously mentioned, by a haḍīth stating that the ḥudūd punishments should be averted in the presence of the slightest doubt, the classical legal scholars outlined provisions making it difficult to apply the ḥudūd punishments.Footnote ⁷⁴ As previously noted, ḥadd punishment for adultery, theft, and robbery has seldom been applied throughout history. But as the analysis suggests, in order to gain the symbolic benefit of imposing frequent ḥudūd punishments, the qāḍīs overlook the strict traditional rules of evidence and procedural requirements, such as the number of male eyewitnesses who actually saw the criminal act. Or, they create new procedures. For example, the qāḍīs might announce that the accused has confessed to the crime, or they might display “evidence” (e.g., allegedly stolen objects) that “proves” the accusations. The fact that corporal punishments and executions are frequently enforced in public is in many respects more important for al-Shabaab than whether the legal proceedings are in accordance with the strict requirements outlined in classical fiqh.

However, al-Shabaab's enforcement of the ḥudūd punishments involves more than mere ideology. As already indicated, enforcement of corporal punishments in public naturally instills fear and thus prevents potential perpetrators from engaging in future criminal activities. Additionally, as the case of Roble shows, al-Shabaab's enforcement of these punishments sends a signal warning other young men not to resist recruitment attempts by the organization.

Similarly, al-Shabaab's dissemination of Salafi propaganda and emphasis on sharī'a is more strategic that it appears. Although al-Shabaab's rhetoric reflects the group's worldview and values, it also serves as a means to draw support from radical Islamists.Footnote ⁷⁵

While some of the group's statements may target Middle Eastern and global jihadi movements in order to gain financial assistance and fighters, other statements may, as Stig J. Hansen points out, be directed at a local audience.Footnote ⁷⁶ For example, some al-Shabaab statements threatening criminal punishment, like the following statement from Abu Mukhtar Robow, appear to target clan loyalty or tribalism: “[F]rom now on it is prohibited to say that so-and-so clan cannot control over there, or so-and-so clan cannot govern so-and-so region. He made it clear that this land belongs to Allāh and anyone who imposes the Islamic law in it can govern it.”Footnote ⁷⁷ Likewise, the senior al-Shabaab official Abu Mansoor al-Amriki emphasizes al-Shabaab's pan-Islamism in opposition to the clan-backed politics of the former Islamic Court Union, stating that “the Courts [ICU] used to judge over each individual tribe,” whereas “[a]l-Shabaab were made up of many different tribes.”Footnote ⁷⁸ Such statements, which simultaneously emphasize al-Shabaab's Islamist nature and denounce the traditional clan system, can be understood as part of a strategy to depict al-Shabaab as an alternative to a clan-based regime that, historically, has led to division rather than unity.

Clans have played a decisive role in Somali politics, notably during the 1990s and early 2000s when they stemmed the tide of Islamic actors who tried to achieve political influence through the many locally based sharī'a courts.Footnote ⁷⁹ In many respects, real power has always remained with the clans, sub-clans, and their warlords.Footnote ⁸⁰ However, the unwritten rule that Islamic identity should complement rather than challenge “the primacy of clanism”Footnote ⁸¹ has been widely challenged by al-Shabaab. Besides the anti-clan rhetoric already mentioned, it has propagated Islamist and Salafi values and symbols in order to construct an alternative Somali identity. Al-Shabaab has also been quick to apply sharī'a rules as soon as it has gained control over a new territory. In Baidoa, for example, the interim al-Shabaab administration, according to Hansen, carried out its first death penalty sentence only four days after the takeover.Footnote ⁸² Further, many poor Somali girls were soon arrested because they could not afford the veils that al-Shabaab had ordered all females to wear.Footnote ⁸³ By stressing the application of Islamic criminal law, al-Shabaab not only managed to create fear and improve law and order locally, it also opposed traditional xeer and the authority of the elders.Footnote ⁸⁴ The Islamic-inspired punishments now being inflicted diverge radically from traditional collective clan conflict resolution, in which an offense is thoroughly discussed by elders from both parties and a decision is made in the case, most often for payment of diya.Footnote ⁸⁵

Although al-Shabaab has been relatively successful in overcoming clan boundaries, it has had difficulty in grappling with the politics of the Somali public. According to Abdirahman “Aynte” Ali, al-Shabaab has made extensive use of non-Somali, jihadi symbols and identities—using, for example, a black flag (a slight variation of al-Qa'ida's flag) with the shahāda (the declaration of faith) emblazoned on it instead of the Somali flag, and propaganda videos showing al-Shabaab militia singing Arabic songs that glorify suicide bombings. These displays have unnerved many Somalis and cast doubt on al-Shabaab's purported goal of liberating Somalia.Footnote ⁸⁶

Additionally, the public has contested al-Shabaab's application of sharī'a. Despite the fact that several of my informants appreciate the generally improved security situation in al-Shabaab-dominated areas and, further, that some of them are even sympathetic to al-Shabaab's aim of strengthening Islamic public morals, almost all interviewees explicitly criticized al-Shabaab's harsh and brutal corporal punishment. Several informants explained that this brutal enforcement was not “the right” sharī'a, even though they recognized that corporal punishment is explicitly described in the sacred texts and the Islamic scholarly tradition. These informants were well-acquainted with the requirements of traditional fiqh, pointing out the many conditions that must be fulfilled and the strict rules of evidence that should be considered before applying punishment. The fact that al-Shabaab punishes theft with amputation even though a high percentage of the population suffers from poverty, and that it punishes adulterers by stoning despite the lack of four witnesses to the actual penetration, demonstrates, in the informants' view, that al-Shabaab fails to apply the “proper” sharī'a. None of the interviewees seemed to believe that those who were convicted in these cases, and who were often described by al-Shabaab as having admitted to the accusations, were actually guilty.

As the governing body of large parts of Somalia, al-Shabaab faces a dilemma. Its leaders have used Salafi rhetoric and symbols such as sharī'a to arrive where they are, but to maintain political power is another matter. So far, it seems that al-Shabaab has tried to gain legitimacy by enforcing harsh corporal punishments and banning “un-Islamic” behavior. Their willingness to enforce the ḥudūd punishments may well conform to Salafi ideology. Yet it may, at the same time, undermine the legitimacy of the regime if its judicial practice diverges too much from traditional Somali norms and values.