Issue No. 963

Part I/The Fault Lines in Somalia’s Penal Reform

The Federal Government of Somalia (FGS) has published a new Draft Somalia Penal Code (SPC) - marking its first comprehensive legal overhaul in 64 years. The 136-page draft was first submitted to Parliament in January 2026 and underwent its first reading but the process of endorsing it became entangled with the escalating electoral and constitutional dispute, forcing the government to shelve it. The changes aim to update the 1962 Law No. 5 Penal Code and codify Islamic criminal law (uqubat). If endorsed by parliament and approved by the President, they will formally embed the three pillars of the Sharia punitive framework into the statute - fixed punishments (hudud), retributive justice (qisas), and statutory judicial discretion (ta'zir).

These amendments signal a significant inflection point in Somalia’s state-building and represent a fundamental shift away from a legacy of Western-style liberal justice reform paradigms toward a conservative Islamic legal order. If the new text is enacted and implemented in its present form, it could upend the status quo, erase historical human rights advancements, foment further polarisation, and precipitate a migratory surge driven by populations resistant to a strictly codified Sharia governance framework.

This briefing, the first installment in a two-part series, provides context on the Sharia debate and analyses the wider ramifications of the SPC if enacted.

Islamisation 

Somalia’s proposed jurisprudential shift is a culmination of decades-long efforts by Islamist factions to align contemporary Somali state-building with Islamic governance principles. And this was a point explicitly restated by Prime Minister Hamza Abdi Barre at a speech at the National Judiciary Conference in Mogadishu in June 2026. Hamza said a comprehensive overhaul to "Islamise" the penal code was necessary and termed the 1962 criminal statute an outdated ‘colonial relic’ misaligned with the religious, cultural, and legal values of the Somali people. The comments reinforced the perception that the Islamist-leaning Hassan Sheikh Mohamud (HSM) administration was intent on fast-tracking the passage of the new sharia penal codes.

Somalia’s Sharia push forms part of a trend in the Muslim world, although it remains uncertain how the new SPC will be applied if adopted. While a significant number of Muslim-majority states – almost half of the Organisation of Islamic Cooperation’s (OIC) 57-member nations – reference Sharia as a source of legislation, retain affirmatory or supremacy clauses in their constitutions, the actual number of ‘hard Sharia states’ applying hudud is still small: approximately 12 sovereign Muslim-majority states - comprising roughly 21% of the OIC.

Moderate justice tradition

In the Somali context, the demand for a Sharia-based legal framework stems from interconnected societal and political dynamics. These include state collapse; a profound societal shift in the last five decades toward assertive religiosity and ‘return to faith’, external influence exerted by global Islamist 'awakening' movements; traditional clan values, and a collective quest for cultural authenticity. Judicial Islamisation further taps into pre-colonial Xeer traditions, which function as a hybrid, quasi-Islamic customary foundation historically designed to align Islamic tenets with local Somali customs. 

One important caveat is worth restating on the links between Xeer and Sharia and how historically Somali clans applied them. While Sharia and Xeer were widely used as complementary justice systems, there is no evidence that clans carried out severe hudud punishments such as death by stoning and amputation of limbs. This strong tradition of hybrid, decentralised and mild application of Sharia in Somali society, past and present, established a de facto judicial equilibrium. This balance will almost certainly come under severe strain or be disrupted if a Somali state were to attempt to impose a centralised and rigid sharia model.

Challenges – homogenisation

Codifying Sharia introduces fundamental institutional dilemmas, structural contradictions, and governance challenges, and could risk destabilising a traditionally decentralised, heterogenous religious system by forcing it into a rigid, state-controlled, bureaucratised framework. Sharia lacks a singular, comprehensive written compendium and comprises an amorphous body of historically uncodified, orally transmitted precepts, spanning four distinct orthodox Sunni schools (Shafi'i, Hanafi, Hanbali, and Maliki). There is no single, universally replicable template for Sharia law. Classical Sunni scholasticism relied on Ijtihad (independent reasoning) and Ijma (consensus). These foundational mechanisms enabled localised adaptation and revision. Across the Somali Peninsula, diverse sharia practises and Xeer customs blended in complex ways. FGS centralisation, therefore, threatens this fluid regime while state enforcement risks igniting deep-seated sectarian divisions and theological disputes. Moreover, the opacity of government consultations with the ulema (clergy) and wider civil society, the country’s federal units, leaves questions of legitimacy and mandate unanswered. The latter point is important considering Somalia is in the midst of a heavily contested transition.

Clash with liberal norms

The draft penal legislation clashes fundamentally with liberal values and norms. The text explicitly retains severe corporal punishments, including death by stoning, execution by firing squad, limb amputation, flogging, and death for apostasy. While observers should temporarily withhold judgment and resist framing Somalia as being on the cusp of an outright judicial "Talibanisation," the trajectory distinctly points toward a putative quasi-Sharia state.

Western support for Somalia’s justice reform was never explicitly driven by a rigid liberal agenda, yet international partners hoped Mogadishu would devise laws conforming to universal human rights. Entrenching a Sharia system based on divine principles into statutory law makes future legislative revision nearly impossible, unlike liberal legal systems, where human-constructed laws remain open to repeal. The net outcome will likely be a severe cooling of Western backing, resulting in budget retrenchment and a sharp reduction in bilateral and multilateral legal cooperation.

If this hard Sharia state emerges, it will likely trigger a massive brain drain of professional elites and the middle class. Such a flight would in turn spark a surge in asylum applications, halt voluntary reverse migration, and potentially force the negotiated return of unwanted refugees from abroad - a trend previously observed in Afghanistan and inside Al-Shabaab-controlled territories. Ample evidence from fragile and conflict-affected states demonstrates that draconian legal systems act not as a pull factor, but as a violent push factor driving mass migration.

Al-Shabaab

Somalia could theoretically emulate Muslim-majority states that maintain Sharia corporal punishments on paper but suspend their enforcement - a form of judicial compromise. Alternatively, it might follow a more secular path, confining Sharia strictly to family law. However, given the resurgence and political dominance of conservative Islamist factions, both scenarios currently remain highly implausible.

Proponents of the draft penal code, conversely, argue that entrenching a Sharia-based penal system could incentivise a peaceful, negotiated settlement - a grand bargain - with Al-Shabaab by fulfilling a core ideological demand of the militant group. Yet, this line of reasoning rests on a deeply flawed assessment of the organisation.

Al-Shabaab possesses a tested, deeply institutionalised brand of Sharia and is not seeking an alternative. Indeed, the group rejects the very premise of constitutional rule within which the SPC is situated, and is unshakeably self-assured in its extremist model, which it frames as the sole expression of "correct Islam." While Al-Shabaab might eventually be open to a tactical cohabitation with the Federal Government of Somalia, it would only do so from a position of absolute dominance where it could dictate its own legal design. Ultimately, Al-Shabaab’s protracted insurgency is driven less by a desire for abstract legal reform and more by the total capture of state power. The group firmly believes that it, and it alone, holds the exclusive mandate to govern a genuine Islamic state

Ultimately, Somalia’s proposed penal reform exposes a profound, unresolved crisis of constitutional-making and identity. The top-down codification of a centralised Sharia framework risks destabilising the fragile state on three distinct fronts. First, it strips Islamic jurisprudence of its historical, adaptive pluralism, replacing fluid scholastic consensus with a static state tool vulnerable to sectarian weaponisation. Politically, the naive assumption that this concession will appease Al-Shabaab ignores the group's true objective. The insurgency is not a dispute over legal text, but an uncompromising pursuit of total state capture. Culturally and internationally, by codifying draconian punishments that alienate Western donors and trigger a massive brain drain of professional elites, the FGS may inadvertently build a legal architecture that isolates Mogadishu, drives mass migration, and fractures the very state authority it seeks to consolidate.