Insurgency- Baghi

Section 26.      Insurgency –Baghi

1. Insurgency is an ideologically motivated criminal organization composed of ten or more persons who intentionally attempt to use force as a means of change of government or contravening a duly enacted statute.
2. The State may use reasonable force to repel an actor’s aggression, detaining actors and their accomplices and seizing any property utilized in the commission of the offense until the insurgency is concluded.
3. No person shall be convicted of an insurgency offence until:

1. He is given an opportunity to explain the reasons and circumstances that led to the commission of the offense and address it if it is redressable; and
2. He is given a fair opportunity to give up the commission of the offense and repent.        

4. No person shall be convicted of insurgency if the basis of attempting to change the government or contravening duly enacted statute is undoubtedly lawful under Islamic law.

Section 26.1          Insurgency Punishment

1. Insurgency is punishable by not less than one day imprisonment and not exceeding …… years imprisonment and/or fine not less than ……and not exceeding ……
2. Any other offense committed during or because of the insurgency shall be punished according to this code.

Explanatory Notes

Personal defiance of the government, political system or law is not insurgency. A collective action is the essence of the offense. The actors must be numerous with considerable force. The defendants’ motive for insurgency is an erroneous ideology, interpretation of law or erroneous interpretation of government action.  Section 26 requires an organization of ten or more to be guilty of this offense. This number is arbitrary and it is up the government to endorse any number that poses a threat to the State and its citizens.

According to Imams Malak, Ahmed and Shafi’i’, actual use of force is necessary for conviction. See 7 Nihayat Al-Muhtaj Ila Sharh Al-Minhaj at 383 and 4 Sharh Fath al-Qadir ala al-Hidayah Sharh Bidayat al-Mubtadi at 410.

Actors must have sufficient power (shawka) to disrupt services or distress society. See 7 Nihayat Al-Muhtaj Ila Sharh Al-Minhaj at 382-3.

Government commands and laws that contradict Islamic law are of no force or effect. Subsection 4 excuses actors from liability when the cause of insurgency is lawful under Islamic law. The cause must be clearly, without any doubt, lawful under Islamic law. The cause can be lawful only in cases involving government orders to commit a sin or refrain from doing an Islamic duty – for example, ordering individuals to consume alcohol or to refrain from prayers. Matters subject to debate are not a valid cause for insurgency. If the government adopts a scholarly opinion that does not contradict prefixed adjudications of Islamic law, citizens must obey and the dissenters who initiate insurgency shall be liable.