Research Guide to the Somaliland Legal System
By Mohamed Farah Hersi
Published February 2009
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Mohamed Farah Hersi is an attorney and human rights researcher. He holds an LL.B (Bachelor of Laws) from the University of Hargeisa in Somalia, an LL.M (Master of Laws) from the University of Pretoria in South Africa, and is currently a Ph.D. candidate.
Table of Contents
Due to the colonization of Africa, the Somali territory was divided into five areas, all subjected to colonial rule, but ruled by different imperialist powers.
The northern part of the Somali territory was colonized by the British government, which named it the “Somaliland Protectorate.” The United Kingdom ruled the Somaliland Protectorate from 1884 to 1960. During the mid 1950s, when the African nationalist movements were gaining momentum, Somaliland became part of the political movement against imperialistic domination. As a consequence, the chiefs and the political leaders in Somaliland agreed to demand their independence from the British government, which was granted on June 26, 1960.
The other four parts of the Somali territory, defined as areas which were occupied by Somali people (Southern Somalia, Djibouti, parts of Ethiopia (the Ogaden region) and the Northern Province of Kenya), were colonized by Italy, France, Ethiopia, and Kenya respectively. During the aforementioned nationalist movement, Somalis in these regions were also struggling to gain their independence from colonial rulers. At that time, Somaliland was the only independent Somali state, and started a political movement towards the unification of all Somalis in the colonized territories into a single state. As a result of this movement, South Somalia gained independence from Italy on July 1, 1960. Although Somaliland was already recognized as an independent state by over 30 countries, the Somaliland government chose to unite voluntarily and unconditionally with South Somalia, indicating the strength of the prevailing sentiment of Somali unity. On July 1, 1960, Somaliland and South Somalia united together to become the Democratic Republic of Somalia.
In 1969, after nine years of civilian rule, the Democratic Republic of Somalia fell under military rule. A coup d’état, led by General Mohamed Siyad Barre, overthrew the civilian government of Cabdrashid Ali Sharmake. While the military regime was in power in Somalia, a political movement developed in the northern regions of Somalia (Somaliland) against the Barre regime. As result of that movement, Barre dismantled and banned all political parties in the country, as well as suspending the multi-party system and the Constitution of the Republic of Somalia.
In 1981, in response to Barre’s aforementioned actions, members of the Somaliland elite launched the Somali National Movement (SNM) in London. This movement incited the northern regions of Somalia (Somaliland), where the Isaac clan dominated, to become increasingly hostile toward the military government, and better organised in its campaigns against it. The government of Somalia consequently imposed certain harsh security measures. Politicians belonging to the Isaac group were either killed or arrested. It should be noted that the status of the Isaac was not like that of the Tutsi in Rwanda or Bosnian Muslims in Serbia, for example, in terms of holding high-ranking governmental positions. The Isaac served as government ministers and highly ranked military personnel, among other positions.
By early 1988, a full-fledged civil war had broken out in Somalia, with hostility coming from the northern region, directed at the military government. As a result of the aggression towards the government, Barre’s regime destroyed Somaliland’s capital of Hargeisa, using a combination of artillery, South African mercenaries, and bomber aircraft, which were launched from the airport and outskirts of the city of Hargeisa. Several UN agencies reported these atrocities. The SNM defeated Barre’s forces in the northern regions, and as result it gained the authority to rule the former northern regions of Somalia (Somaliland). In 1991, the civil war came to an end.
After the fall of Barre’s regime in Somaliland, an inter-clan conference was held in Buroa. On May 18, 1993, the Republic of Somaliland declared itself an independent and sovereign state. The territory of Somaliland is bordered by Ethiopia in the south and west, by Djibouti in the northwest, by the Gulf of Aden in the north, and by Somalia in the southeast.
The Constitution of Somaliland provides for a hybrid system of governance, which combines traditional and western institutions. In a series of inter-clan conferences, culminating in the Boorama Conference in 1993, a clan-based government was constructed, which consisted of an Executive, with a President, Vice President, and Council of Ministers, a bicameral Legislature, and an independent judiciary. The traditional Somali council of elders was incorporated into the governance structure and formed the upper house of the legislature, responsible for selecting a President as well as managing internal conflicts. The government became a "power-sharing coalition of Somaliland's main clans," with seats in the Upper and Lower houses proportionally allocated to clans according to a predetermined formula. In 2002, Somaliland finally made the transition to multi-party democracy. The local council elections were contested by six parties, and were considered the most peaceful in Africa for twenty years.
Somaliland is situated on the eastern horn of Africa and lies between the 08°00' - 11°30' parallel north of the equator and between 42°30' - 49°00' meridian east of Greenwich. It shares borders with the Republic of Djibouti to the west, the Federal Republic of Ethiopia to the south, the Puntland region to the northeast and Somalia to the southeast. Somaliland has 460 miles (740 km) of coast, the majority of which is along the Red Sea. Somaliland is slightly larger than England, with an area of 137 600 km² (53 100 sq miles).
Somaliland's primary export is livestock, estimated at 24 million heads per year. In 1996, 3 million heads of livestock were exported to the Middle East alone. A February 1998 ban on beef imports by Saudi Arabia significantly harmed this industry. However, the ban was lifted in December 2006, which allowed the industry to recover. Other exports include hides, skins, myrrh, and frankincense. Agriculture is generally considered to be a potentially successful industry, especially in the production of cereals and horticulture. Mining also has potential, as there are many diverse mineral deposits in the country, although currently the industry consists solely of quarrying.
Recent research shows that the country has large offshore and onshore oil and natural gas reserves. Several wells have been excavated during the last few years, but due to the country's unrecognized status, foreign oil companies could not invest in them. This has caused a wide range of problems which may affect the stability and sustainability of the peace and democracy that have been achieved by Somaliland since its secession.
Somaliland has not yet established a concrete and reliable trade relationship with the international community. Although Somaliland has good relations in terms of trade deals with various countries, the lack of recognition continues to paralyze the potential for investments that the international community may consider.
Since the Eritrean-Ethiopian War, Somaliland has grown as a major export port for Ethiopia. The two countries signed a deal in which Ethiopia agreed to pay Somaliland for the use of the port city of Berbera to export and import goods for Ethiopia.
The 2001 referendum of the Constitution of Somaliland established a new democratic system. The political system in Somaliland is based on presidential, rather than parliamentary, system. A presidential system was chosen because the parliamentary system proved to be unable to deal with the constraints imposed by clan-based politics. Somaliland has three independent branches of government, executive, legislative and judicial.
Prior to colonial rule, Somaliland practiced both Islamic law and customary law. Islamic law was not as effective as the customary law. Customary law, referred to as the Somali traditional justice system, was the only widely effective law which existed during the pre-colonial era. Although these two legal systems merged, Somali traditional law was still the dominant law in Somaliland. As a result of colonization, Somaliland adopted the statutory law which was brought by the colonial powers. This statutory law became an integrated with the previous laws which were effective in Somaliland, creating a hybrid legal system in the country. At present, there are three legal systems, all derived from different sources, which regulate both civil and criminal acts.
Although Somaliland was a British protectorate, the merger with South Somalia altered the legal tradition of the nation. Hence, the common law was overruled by the civil law tradition.
The majority of the population of Somaliland is Muslim; hence the Islamic religion is very influential on the Constitution and legal system. The Constitution of Somaliland provides that enacted legislation will be deemed invalid if it contravenes the basic principles of Islamic law. Because of this provision, there exist informal courts which deal with certain issues to which Islamic law is relevant, such as marriage, divorce, and succession.
Prior to the colonial era and before Islam became the dominant religion, the Somali people were regulated by customs and traditional values and norms. This traditional justice system is now enforced and entrenched through legislation. Although customary law is not specifically provided for in the Constitution, the people of Somaliland are still entrusted to resolve their disputes through methods of traditional justice in conjunction with Islamic law.
Somaliland has not yet adopted special tribunals, claiming that they lack both the financial and human resources necessary to establish such courts. Furthermore, there is currently no enacted legalisation which will establish such courts.
As provided both under article 5 of the Constitution and in the preamble of the Constitution, Islam is the state religion. In addition, the primary basis of all legislation is Islam, and every law enacted by the parliament which is not consistent with the principles of Islamic law shall be null and void.
The process of law making is laid out in the Constitution of Somaliland. Article 77 of the Constitution stipulates the procedures and the powers of the different organs of the state in regarding the drafting, adoption, and approval of bills. This article provides the following:
Each House of Parliament shall forward any bills which it passes to the other House for review and advice. Each House may refer a bill back to the other only once. The Parliament shall determine the procedures for the progress of bills, and shall make clear the special status of bills relating to finance and those that the Government considers to be urgent, both of which shall be given priority. Any bill passed or approved by a 2/3 majority of both Houses of Parliament may not be referred back to the Parliament by the President, who is thereby obligated to sign it. If the President considers the bill to be in conflict with the Constitution, he shall inform the speakers and the Attorney General, who shall refer it to the Constitutional Court. The President shall sign any bill forwarded to him by Parliament within three weeks of receipt of the bill, provided that he has not referred it back to Parliament. If the President fails to sign a bill forwarded to him by Parliament within the required period, and has not referred it back to Parliament, then the bill shall henceforth become law, and shall be promulgated by the House which had forwarded it to the President.
All bill passed by a majority of members of the House of Representatives, other than those relating to finance, shall be forwarded to the House of Elders, which shall:
· Approve them or propose amendments, or
· If the House of Elders does not approve the bill, or its proposed amendments are not accepted by the House of Representatives, the latter has the right to return the bill to the House of Elders during its next session. If the House of Elders does not approve the bill this second time, nor submit a response within a month, the bill shall pass and shall accordingly be forwarded to the President.
All bills passed by the House of Elders by a majority shall be forwarded to the House of Representatives, which shall:
· Approve it or propose amendments, or
· If the House of Representatives does not approve the bill, it shall not be referred back to the House of Elders.
If the President accepts a bill passed by both Houses, he shall issue it in the Official Journal within 21 days. If, however, the President does not accept the bill, or proposes amendments, he shall inform the Speaker of the House of Representatives his reasons for such action within 21 days. If the House of Representatives is not satisfied with the reasons given by the President, and the bill is passed again by a 2/3 majority of the members of the House, the President must accept the bill. If a 2/3 majority is not reached, the bill will not pass.
Somaliland had its own judicial system headed by the High Court in Hargeisa until 1960. In 1960, the Somaliland Constitution re-confirmed the existing judicial system, but suspended the appeals to the East African Appeal Court. On the reassertion of its independence in 1991, Somaliland rebuilt its judicial system fairly quickly, with the Somaliland 1993 Charter (Article 21) setting up the Somaliland Supreme Court as the highest court of the land. The court structure which had existed prior to the military rule of 1969, which was based on the Organisation of the Judiciary Law 1962 (Legislative Decree No. 3 of June 12, 1962) was re-established and confirmed by the Somaliland Organisation of the Judiciary Law 1993 (Law No. 41 of August 18, 1993). The court structure was re-confirmed in the 1997 Interim Constitution and is now set out in Chapter Four of the current Somaliland Constitution. A description of the structure of the current Somaliland courts of law is set out below.
The new Somaliland Organisation of the Judiciary Law (Law No. 24, 2003) which proposed to consolidate the existing provisions was initially approved by both Houses (on Dec. 21, 2003 by the House of Representatives and on Feb. 15, 2004 by the House of Elders), but was returned by the President to the Houses to re-consider the then Article 10(2) of the Bill, which related to the appointment of Supreme Court judges. The President said that the Article did not conform to the Constitution; the Article stated that the President shall consult the Supreme Court Chairman about such appointments, while the Constitution says that he shall consult the Judicial Commission, which is incidentally chaired by the Supreme Court Chairman. When the House of Elders passed this bill in 2004, they also amended Article 21, proposing to rise the minimum age of judges to 35. The bill was adopted on July 13, 2000. This Bill is now awaiting approval by the House of Elders and the President. As it is mainly a consolidation law, almost all of its provisions are already in force.
There are two principal sources which empower the Courts of Somaliland and delineate the judicial structure, which are:
· The Somaliland Constitution, Chapter four, and
· The Organisation of the Judiciary Law, (Law No. 24, 2003)
There are several different types of courts in the nation, each of which serves a different function. They are as follows:
· First instance courts, which are the District Courts and the Regional Courts,
· The Appeals Courts,
· The Supreme Court, which is also the Constitutional Court. The Court can also serve, with additional representatives, as the High Court of Justice when dealing with the impeachment of public officers other than the President or Vice-President.
As provided on August 14, 2006 by the then Acting Chief Justice, Somaliland has now 33 functioning courts of law, staffed by 87 judges.
The district courts deal with all claims based on Sharia, which are primarily matters relating to family law and succession. They also deal with civil litigation concerning suits for amounts up to 3 million SL (Somaliland Shillings - about $484 at a rate of exchange of $1 = 6200 SL)., and criminal cases punishable by imprisonment for up to 3 years or fines up to 3 million SL. This court is presided over by a District Judge.
All civil litigation and all criminal cases which do not fall within the jurisdiction of the District Court are under the jurisdiction of the regional courts. The General Section of the Court deals with crimes punishable by imprisonment for periods between 3 and 10 years which are heard by a Regional Judge. The Assize Section deals with cases attracting a higher prison sentence, which are heard by a Regional Judge and an assessor who has knowledge of the Sharia. According to Articles 7 and 38 of the Organisation of the Judiciary Law, and the panel of assessors is compiled every year by the Ministry of Justice. This court also deals with all claims pertaining to labour or employment law, and any claims arising out of local government elections.
The Court is divided into four branches – civil, criminal, finance and taxation, and juvenile. The President of the Regional Court hears juvenile cases, which come under the jurisdiction of the Regional Court.
The Appeals Courts deal with all appeals from the District and Regional Courts. Each Appeals Court is divided into:
1. The Assize Appellate Section which deals with appeals from the Regional Assize Court, which are heard by two Appeals Judges and two assessors;
2. The Juvenile Section;
3. The Finance & Taxation Section; and,
4. The General Appellate Section, which deals with all other civil and criminal appeals.
The President of the Appeals Court in each region acts as the head of the judiciary in that region.
The Supreme Court is the highest judicial organ in the country, and is comprised of the chairman and at least four judges. The Supreme Court deals with:
1. All appeals from the Appeals Courts;
2. Jurisdictional issues between the courts of the land;
3. Administrative suits relating to the final decisions of public bodies;
4. Declarations of general election results (both presidential and parliamentary) and decisions on any complaints relating to such elections, as well as appeals from lower courts’ decisions regarding complaints relating to local government elections; and,
5. Reviews of its own decisions under the relevant Articles of the Codes of Civil and Criminal Procedures (Articles 266 & 238 respectively).
The Supreme Court may sit as a bench of three justices, or as a full bench when dealing with important issues or issues set out in Article 10(4) of the Organisation of Judiciary Law (e.g. appeals relating to elections issues, cases from the Assize section of the Appeal Courts etc). Under Article 12 of the same Law, the Supreme Court shall have the following sections:
1. Civil section;
2. Criminal section;
3. Juvenile crime section;
4. Administrative section; and,
5. Research & legal interpretation section.
The justices of the Supreme Court also constitute the Somaliland Constitutional Court. The Constitutional Court sits as a full bench and can:
1. Adjudicate on suits relating to the constitutionality of the acts and decisions of the Government and the Legislature;
2. Interpret the provisions of the Constitution and the laws of the land when these provisions are a subject of controversy; and,
3. Reach decisions on prior court decisions which are challenged as being contrary to the Constitution.
The justices of the Supreme Court can also sit as the High Court of Justice, with an additional four representatives elected by the two Houses of Parliament. This special court deals with the impeachment of ministers, members of parliament, and other specified public officers; since 2000, this court does not deal with the impeachment of the President or the Vice-President.
Article 2 of the Organisation of the Judiciary Law, (Law No. 24, 2003) re-confirms the independence of the judiciary, which is set out in the Constitution (see Articles 97(2) and 99(2)). The Law also makes it clear that special courts outside the courts of law which are set out by the Constitution cannot be established in Somaliland, and no committees with judicial powers or which act in a quasi-judicial capacity and issue criminal punishment can exist in the country (Article 2(3) & 2(4)). Individuals can, however, by agreement of both parties to a dispute, use alternative dispute resolution mechanisms through appointed mediation panels (Article 2(5)). This simply confirms the traditional methods of settling disputes.
Judges other than Supreme Court justices are appointed by the Judicial Commission, which was set up under Articles 107 and 108 of the Somaliland Constitution. Judges hold office until their retirement, which is typically at 65 years of age. The Commission is chaired by the Chairman of the Supreme Court and consists of two other Supreme Court Justices, the Attorney General, two high ranking civil servants (Heads of the Ministry of Justice and the Civil Service Agency) and four members of the public selected once every two years by the two House of Parliament. The Commission also deals with the promotion and, when necessary, the disciplining of judges, the procedures of which are set out in detail in Articles 40-46 of the Organisation of the Judiciary Law.
The Chief Justice is appointed by the President, in consultation with the Judicial Commission, according to Article 105 of the Constitution; but in respect for the Chairman of the Commission, the appointment must be confirmed at a joint sitting of both Houses of Parliament. The President, under Article 105(2), may dismiss the Chairman of the Supreme Court subject to the approval of both Houses.
Neither post-colonial nor post-military regime Somalia has had any comprehensive legal research libraries, privately sponsored websites, governmental websites, bar associations, legal information guides, Supreme Court libraries, or law databases. Therefore, it is very difficult to find relevant legal information. All of the websites which are mentioned in this article are supervised by the Somaliland Diaspora.
Somaliland, despite being an unrecognized state, has a complex system of laws which regulate all aspect of citizen life. The laws of Somaliland are mainly derived from the laws which Somaliland had practiced during the union with Somalia. Although Somaliland has drafted and adopted a Constitution which invalidates all pre-Somaliland laws that are not in conformity with the current constitution, some of these laws are still enforced by Somaliland courts. There are numerous statutes, regulatory codes and other laws which the Somaliland parliament has passed, all of which are consistent with the constitution.
The Somaliland legal system is organized according to the civil law, rather than the common law. Consequently, case laws are neither published nor significant to future legal decisions.
In Somaliland, there are no law reports issues which document the annual reports of the courts, or the judgments and decisions of the courts.
Legal journals are not yet being published in Somaliland. The faculty of law at the University of Hargeisa has recently published a legal magazine which is aimed at analyzing and discussing the laws of Somaliland. However, this magazine is more like a student law review than a legal journal.
The Somaliland government set up an official government Gazette three years after the restoration of Somaliland independence. The primary purpose of this gazette is to publish all laws which the president signs and promulgates. It is published on monthly basis, and is crucial for the dispensation of the promulgated laws in Somaliland. One of the main challenges facing this governmental Gazette is the lack of an official website, which can make available the laws which have been promulgated in Somaliland.
This website is the largest legal resource that one can find the laws of Somaliland.