UPDATE: Research Guide to the Somaliland Legal System

 

By Mohamed Farah Hersi

Update by Prof. Mohamoud Hussein Farah

 

Prof. Mohamoud Hussein Farah is a lawyer by profession, a senior lawyer among Somaliland lawyers, a member of Somaliland Association, and has been the Dean, Faculty of Law, senior lecturer in Environmental Law and Natural Resource, Labour Law, Introduction to Law and Legal Systems, and Conflict of Laws since 2004. Prof. Farah is also Vice Chairperson of Law Reform Commission (2015) with long experience of work in the field of legal review and reforms  through legal education and research of justice system, also he has linked with human rights advocacy and has been engaged in other intellectual activities and closely associated with a number of legal professional bodies and justice reform with some universities of law faculties such as University of Hargeisa, Pretoria University, University of Cape Town, Djibouti University and others. Graduated from International University of Africa, Khartoum and holding LLB Degree, PGD in Law and Economics from Sudan Academic, Prof. Farah is the founder of Somaliland legal Clinic at the University of Hargeisa with the help of Prof. Gaskins from USA. Mr. Farah has a strong link with international legal institutions. Mr. Farah is a senior follow researcher at university of Cape Town.

 

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.

 

Published January 2016

See the Archive Version

 

Table of Contents

1.     Republic of Somaliland

1.1. Reception and Application of Different Legal Orders

1.2. Pre-Constitutional Structure of the Government of Somaliland

1.3. Electoral System

1.3.1.      Elections Legal Framework

1.4. Geography

1.5. Economy

1.6. Land Tenure System

2.     The Political Structure of the Government of Somaliland

2.1. Somaliland Nationality and Citizenship

2.2.  The Law or Organs of the State

2.3.  The Sources of Somaliland Laws

2.3.1.     Civil Law Tradition

2.3.2.     Sharia Law

2.3.3.     Customary Law

2.3.3.1. Classification of Somaliland Customary Law

2.3.3.2. Nature of Somali Customary Law

2.3.3.3. Judges in the Somali Customary Law

2.3.3.4. Announcement of the Verdict and Appealing Against It

2.3.3.5. Forms of Judgement

2.3.3.6. Enforcing the Judgement

3.     Special Legal Institutions and Tribunals

3.1. Somaliland Police

3.2.  Land Tribunal Dispute

3.3.  The Ombudsman or Public Defender

3.4.  Somaliland Human Rights Commission

3.5.  The Status of Islamic Law in the Constitution

3.6.  Process of Law Making

3.7.  Somaliland Law Reform Commission

4.     The Judicial Structure

4.1. Attorney General

4.2.  The Hierarchy and Structure of the Courts

4.3.  The Jurisdiction of District Courts

4.4.  The Jurisdiction of Regional Courts

4.5.  Appeals Courts

4.6.  The Supreme Court (and the Constitutional Court)

4.6.1.     The Appointment of the Chief Justice

4.6.2.     Juvenile Justice Administration

5.     Professional Standards

6.     Somaliland Legal Research

6.1. Primary Legal Materials

6.2.  Case Laws

6.3.  Law Reports

6.4.  Legal Journals

6.5.  Official Government Gazette

7.     Legal Clinic

7.1. Legal Clinic Structure

8.     Online Resources

 

1.     Republic of Somaliland

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.

 

1.1.  Reception and Application of Different Legal Orders

Prior to a colonial presence in Somaliland, pre-1886, conflicts were resolved by clan elders by use of customary law (XEER) and the Islamic religious law, Sharia. Sharia was applied with adjustments that reflected customary influences. The Somaliland British Protectorate period, 1886-1960, witnessed the introduction of Common Law. During that period customary law, Sharia, and Common Law operated within the context of defined areas of subject matter jurisdiction: customary law was applied to resolve conflicts between Somalis; Sharia was applied to resolve conflicts of succession and family matters; Common Law was applied to non-Somali conflicts, if penal, the Indian Penal and Criminal Procedure codes were applied; if commercial, Common Law commercial law principles were applied.

 

Like Somaliland, the Somali clans in northeast and southern Somalia, prior to Italian colonization, resolved their conflicts by use of customary law and Sharia. In 1893, with the establishment of The Italian Somaliland, Civil Law was introduced as an additional legal system. During the initial years of The Italian Somaliland, customary and Sharia law were allowed to resolve cases that concerned Somalis. Prior to decolonization in 1960, Italy enacted laws that established Kadis Courts and later limited the use of customary and Sharia law to matters of the concerned Muslims. Other controversies were resolved by use of Italian Civil Law in the formal court system.

 

With the introduction of Somaliland legal orders in the Somaliland, the British imposed the English common law on us but they recognized the efficiency of Customary Law in the lives of the people and thus did not discard it. They allowed it to exist side by side with the received common law and statute law. In Akils courts they established customary law became the principle law applicable and administered and because these courts were manned by local chiefs who know the customary law governing their communities.

 

Long before the advent of the British as a colony master, our ancestors evolved a number of rules that governed their day to day relationships. These rules were accepted as binding on all members of the community; hence customary law has been described as “Mirror of accepted usage”. These rules were handed down and disseminated orally from one generation to another. Thus, they are invariably unwritten, partially written, and not codified as they only come to be ascertained by oral evidence. These rules are what we known today as customary law. The legal systems of Somaliland are regulated by the Constitution of the Republic of Somaliland, which is the main legal pillar and all other official laws comes under the constitution. Upon reasserting its Sovereignty in 1991 the Somaliland government under Article 130(5) of the Constitution which is clearly stipulated that:

 

“All laws which were current and which did not conflict with the Islamic Sharia, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland.”

 

At the conclusion of the British and Italian colonization of Somalia in 1960, the two former colonies united to form the Republic of Somalia. Amongst the many challenges facing the newly established nation was the unification of the two legal systems, each with its own approach to the application of customary and Sharia law, including the four sources of law: Customary, Sharia, Civil, and Common law. Essentially, the challenge called for fashioning a system of conflict resolution that gave due consideration to compelling political and legal imperatives of that point in time. The new government legislature brought closure to the matter when it adopted the Italian Penal and Civil Code (Civil Law), and the Indian Criminal Procedure Act (Common Law). The legislature also passed the June 1962 Organization of the Judiciary Act (The Act). The Act established a hierarchy of courts, with the District Court serving as the principle entry point to the formal legal system. The Act gave the District Court subject matter jurisdiction over controversies arising under customary and Sharia law. Accordingly, the four sources of law were duly accommodated by the new government.

 

During the SiadBarre regime, 1969-1991, many laws were revised, initially to embrace Socialist legal principles, and later to advanced dictatorial policies of the regime, which contributed to the onset of the Somali civil war which concluded with the removal the Barre regime.

 

Somaliland declared its independence on 18 May 1991. On 18 June 2001, the Somaliland Constitution became effective. Article 130 of the Constitution brought into effect all Somali laws in existence prior to the adoption of their Constitution, provided that those laws do not contradict the Sharia and do not contravene international human rights law.

 

1.2.  Pre-Constitutional Structure of the Government of Somaliland

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 four years.

 

Somaliland's system of government is a multiparty electoral democracy featuring a bicameral parliament. The President, Members of the House of Representatives and Local Councils have all been chosen through peaceful and transparent elections that have been witnessed and confirmed by international observers.

 

1.3.  The Electoral System

The electoral system of Somaliland managed by independent and impartial institution named NEC. In 2000, the first National Electoral Commission (NEC) was appointed and soon organized the first three elections: the Local Council elections, the first Presidential election, and the Parliamentary elections. NEC is comprised of seven commissioners. In order to meet international standards, an electoral system should be characterized by inclusiveness, simplicity, legitimacy, fairness and accountability (International IDEA, 2002). The Somaliland constitution defines political system that is based on a democratic multi-party structure, in which the head of state, parliament and district councils are directly elected by the public through a secret ballot. As such, the last outcome of the 2010 election included a peaceful transfer of power, demonstrating the increasing capability and willingness in Somaliland to move forward with the democratization process which is based on one man one vote.

 

1.3.1.     Elections Legal Framework 

A legal framework for elections will typically include the Constitution, Electoral law, and other legislative acts relating to other aspects of elections, agreements among the main stakeholders on the conduct of elections and Codes of conduct for political parties, for election officials and for election observers. In this regard, and considering with the international instruments, Somaliland is bound by these human rights treaties acceded to or ratified by the Somali Republic and has formally confirmed its compliance with them in the Constitution. The Republic has also confirmed that it shall implement in Somaliland other human rights treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, Article 25).including but not limited the 1966 International Covenant on Civil and Political Rights (ICCPR, Article 25).

 

1.4.  Geography

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).

 

1.5.  Economy

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.

 

Accordingly, the confirmed 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.

 

In line with this, the Recent National Development plan vision stated that there are seven priority sectors identified as critical to the economic development agenda. These are:

 

·       Agriculture and livelihoods (including, livestock and fisheries),

·       Trade and financial services,

·       Tourism,

·       Manufacturing

·       Mining

·       Private sector Investment and

 

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.

 

1.6.  Land Tenure

All land in Somaliland belongs to the state of Somaliland and the authority to manage; appropriate land shall lie with Somaliland Government." In this context the land is a central category of property in Somaliland; also it is the principal source of livelihood and material wealth. Hence, the current Somaliland constitution has clearly stipulated in article 12(1) that the land is a public property commonly owned by the nation, and the state is responsible for it.

 

Somaliland Land Laws within Legal Pluralism over the Land Institutions

The current legal regimes over the land management are characterized by significant complexity on the land ownership and its management where the Somaliland traditional legal orders exist in a state of legal pluralism whereby customary law (xeer), religious law (shari’a) and secular law operate simultaneously.

 

As some study shows that these three legal orders are operating simultaneously, where in generally speaking today, the legal framework for Somalia’s land tenure system is a mix of secular, Sharia, and customary Xeer law. This legal pluralism has often provided a flexible structure that local actors have used to craft appropriate solutions, but it has also left grey areas within which conflicts begin. In order to reduce potential clashes and raise incentives to invest in the country there is a need for a greater transparency and certainty in its land tenure regime through harmonization, reform and transformation.

 

As noted by Woodman: Legal Pluralism may be defined as the condition in which population observed more than one body of law. So long as there is some observance within a population, even of a slight degree, a body of norms may be considered as law for this purpose[1]

 

Therefore, in this context we can say Somaliland can be labelled as a system of hybrid legal system, where the expression of legal pluralism denotes the concerned with the coexistence of different forms of law, also the legal pluralism is also opposed to the legal borrowing by one political or social body from another, in this regard, professor Salvatore Mancuso[2] explaining in his article of African law in action[3]: and he stated in his quoted statement that the expression “Legal Pluralism” or “legal syncretism” are used to describe the encounter between western legal culture based on written rules and the oral African tradition. This encounter created a hybrid legal system based on tacit compromise and the formal subjugation of African legal traditions to western law. An essential element of this hybrid system is the resistance of African legal traditions to the attempt to subjugate them, and their capacity to adapt themselves to the changes occurring in African societies.

 

Accordingly, as noted, customary law (xeer), religious law (shari’a) and secular law operate simultaneously and each applies in the land ownership:

 

a)     The Customary Law (Xeer), practically customary law is a highly specialized institution adapted for administering, managing and regulating common property such as pasture, grazing land, forests and water in most of the rural areas. The elder’s court of the clan constitutes the source of Xeer and has the role of the supreme guardian. Somaliland tradition elders have had and still have important roles to perform in land allocation and land management in rural areas, because in this context traditional authority (Suldan, Aqil and headmen of the village) has a power to their communities and the very day affairs of the village life.

         

b)     Secular law (State Law, formal law often called official law) is more complex to evaluate as most of the laws are ineffective and are not used widely, most of those that are applied are inappropriate and highly inefficient. The British colonial authorities introduced modern urban land administration in Hargeisa and Burao, as they started to issue entitlements for residence, commercial and farming properties in the emerging towns. With the first constitution of the Somali Republic, issued in June 1960, all land became nationalized to be managed by the administration. Under the democratic government, which in general had a liberal economic agenda, land transactions in urban areas increased, and in Hargeisa and Burao a small real estate market developed. This trend continued during military rule. Urban land could be leased for an unlimited period, but the state held several legal options to revoke these agreements (APD 2010). Due to corruption and nepotism, those with close ties to the ruling elite were often able to get access to valuable plots in the country’s main urban centers. Nevertheless, the decline of proper land management system has followed due to the disintegration of its institutions in 1991.

 

As noted earlier the applied laws governing on land issues and other laws relating to exploitation of natural resources were different in part of Somali republic. In this regard after long discussion among united parts of Somalia it was issued a special law relating to state ownership of agricultural lands (Law No.4, 1967). Then after that Somali government introduced a land reform commission in 1965 in order to advice the government on land policy, a land reform was appointed on May 9, 1965. Their mandate was to report land development and dealt with agrarian development including demarcation, clearance of land and settlement of Nomads, and agrarian reforms including a land tenure system, tendency, rights, land ceilings, prevention of fragmentation of land protection of the interest of workers and landless labourer and land taxation. In this regard the first draft law was introduced in 1966 on the basis of the recommendations of Land Reform Commission, where then the government submitted to the National Assembly in 1966, the content and jurisprudence of this law was followed by Italian pattern, which divide the land into demanio, i.e. state owned land and private land, the state land can be further divided into public patrimony and public domain[4].

 

Similarly, Somaliland pattern followed by that history where the existing system of land tenure introduced agricultural law and urban land management in 98 and 2001 respectively, Furthermore, another some challenges is that copies of the laws of both the former Republic of Somalia and the British Administration appear to be unavailable, because some laws were destroyed during the civil war or respondents in this study were unaware of their whereabouts or they may exist in Somaliland, this includes Somaliland Charter 1960-1 set up Town Planning Board and Surveying and Mapping Board post-independence. In this regard some sources indicated that the title deeds registration system provided for by the Registration of Documents Ordinance (Cap. 82 of the 1950 Laws of the Somaliland Protectorate) is a much simplified system of registration designed to assist the operation of the land market and would be satisfactory for Somaliland in foreseeable future.

 

c)     The Islamic law should be viewed as the primary source of law in Somaliland, where Sharia has been officially recognized within the constitution (Article 5). However sensibly Islamic law governs mainly family related issues as marriage, divorce and inheritance. Apart from the Constitution of 2001, the current land management system in Somaliland has been built upon the system established during the pre-war government and aspects from these three legal systems remain. Family laws remain under Sharia principles while rural land is mainly ruled under Xeer or criminal laws under secular system. Although  the application of each system is applying in Somaliland context, and has resulted influence of the customary law and sharia principles in the rural but   On the ground, formal law and the related institutions have the greatest influence in urban areas. In Hargeisa, the steps for recording the transfer of a property are well documented in a recent World Bank report. Overall, Hargeisa’s system ranks 79 out of the 183 countries surveyed in terms of speed, cost, and complexity – better than many countries in Sub-Saharan Africa, but below the most internationally competitive developing countries. In addition, the transfer of the land is not fully secure as it is very difficult to ensure that there are no prior claims to a property. This is a function of the fact that the property registry is not necessarily updated when a new transfer is recorded[5].

 

Additional applicable law to land ownership includes:

 

 

Findings and challenges exist within the legal framework of the constitution and they are as follows:

 

 

·       Urban Land Management Law No.17/2001: The Land Management Law No. 17 covers; the allocation of land; the planning and control of development of land; aspects of land tenure including registration of title; appropriation of land for public use and compensation; demolition of buildings; land disputes mechanism; and building regulation. Stipulation the land is owned by the Republic of Somaliland its management, transfer and lease proposal lies on the government which should pass decree for public purposes[9]. It is noted that public purposes do not include land for urban poor under this Act. The Land and Urban Planning institute under the National urban Planning committee chaired by Ministry of Public Works is in charge of the creation of the urban land physical plans.

 

Following the above laws regulating the ownership of the law, some provisions of the law No. 17 have been criticized for setting up, under Article 28, a quasi-judicial committee chaired by a District Judge for dealing with disputes about urban land, but appeals against their decisions go to the Regional Court. This has now been amended and the disputes are now dealt with by Administrative Urban Land Disputes Committees consisting of 7 members where 5 (including the Chairman) are appointed by various central government ministries and 2 are nominated by the district local authorities. Appeals against the decisions of the administrative committees, as in all challenges of administrative bodies’ decisions, lie with the Supreme Court within a very short time limit of one month. The committees will be based at the premises of the district councils and the Minister of Interior is given a power to issue regulations relating to the allowances of the members’ fees, the applications to the committees, their procedures and execution of their final decisions. Whilst this amendment makes it clear that the decisions on land disputes will now be taken by central and local government officials, and not, as previously, by a quasi-judicial body, the only appeal route to the Supreme Court. Additionally, the function of the Land Conflict Management Committee and its relations to the judicial structure are not obvious. For instance, it is not clear when the committee is to be called upon and how its decisions are to be considered by the courts. It is said that the committee is only a witness in the court, but its decisions are nevertheless binding. In fact, the functions of the committee is the jurisdiction of the courts of law and the sphere of their authorities, thus putting the binding quality of their decisions, while some of the constitutional right to appeal is partial which is also a defect to this law. In this regard the Director General of the Ministry of Interior prepared preliminary draft of land dispute procedural regulation which is not yet implemented but in the process.[10]

 

 

According to Law No. 23 of 2002 of district authorities under Ministry of Interior are in charge of internal security and law enforcement (Articles 10, 13, and 34) and at times are involved in quelling land dispute that have become violent by restoring law and order. As well as mediating between disputing communities. Furthermore, the district councils are also responsible for the allocation or planning of new land schemes in their areas of jurisdiction (article 20 and 34). Article 24 gave mandate to propose, in accordance with the law, the appropriation of privately owned vacant land for public interest reasons, which means that the district authority has a role to manage the land in the private owned vacant land for public interest reason. Additionally when to be enforced the land and its implementation shall be guided the regulation issued by Ministry of Interior where Article 54 states that the Ministry of Internal Affairs shall issue regulations detailing the implementation of this Law.

 

Therefore, both Law No. 17 and Law No. 23 of Urban Land Law and Regional and District Law mandate the minister of interior to issue regulations to implement these acts.

 

2.     The Political Structure of Post Clan-Based Government in Somaliland

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.

 

2.1.  Somaliland Nationality and Citizenship

Generally, Somalilanders continue to share common ethnicity, religion and in many cases clan affinity with other Somalis across the entire country – to the west with the republic of Djibouti, to the south with the Ethiopia Somali federal region and to the east/southeast with Somalia. The common national origin is based on the territories within the boundaries, however the link to nationality of the Somaliland protectorate, followed by the nationality of the independence state of Somaliland (Somaliland nationality and citizenship law – Ordinance No.15 of 1960).

 

In this legal historical background Ibrahim Hashi commented on the website of somalilandlaw.com that With the Great Britain’s declaration of a Protectorate in Somaliland in 1886 (and its official notification, on 20 July 1887, of the European Powers in pursuance of by General Berlin Act Conference) which was not confined to the areas where treaties of protection were signed with some of clans, the people of Somaliland acquired a new status of ‘British Protected Persons’ under existing International laws. The British Protected Persons Order-in-Council 1934 which related to Somaliland and 15 other British Protectorates (all in Africa, other than the Solomon islands) defined the persons belonging to the territories ‘that were afforded British protection’ and were known as British Protected persons as “any person born (whether before or after entry into force of this Order) within the territory who is not, at the time of his birth, a British subject, and who does not, at the time of his birth, possess under the law of some other State the nationality of such State. Also persons born out of the territory (who were not, at birth, either a British subject or the national of another State) and whose fathers, at the time of these persons’ birth, were regarded as belonging to the territory (and were themselves born in the territory), could also be regarded as British Protected Persons (s. 2(b)). The Territory of Somaliland Protectorate was set in various international agreements in the 19th Century and all the boundaries with the neighbouring countries (including the boundary with Somalia to the South East) were delineated by the 1930s-see Somaliland Boundaries.

 

Followed with different periods of Somaliland‘s rebuilding as a nation there were different acts of nationality and citizenship laws but finally the current only applicable Somaliland citizenship law No. 22 of 2002. Also Somaliland enacted immigration and refugee laws. Finally, although Somaliland is not yet recognized by the United Nations but it has bilateral agreements with other countries in the region such as Seychelles, Ethiopia, Djibouti and others. Therefore, Somaliland passport was accepted by many countries in the region.

 

2.2.  The Law of the Organs of State

Accordingly, Somaliland Constitution in its Article 122 stipulates that there shall be law of the organs of the state and that each special organ shall have a laws setting out its structure, responsibilities and the status of its head. Additionally, Somali Government proposed a new bill in 2015 which is setting the role and responsibilities as well as the government administrative structure.

2.2.  [L1] The Sources of Somaliland Laws

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.

 

2.3.1.     Civil Law Tradition

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. In this point the Somali Civil Code (Law No: 37 of 2 June 1973) entered into force on 1 July 1973. Before this date, the common law and other Somaliland Protectorate and Indian enactments, such as the 1872 Indian Contract Act were still in force in Somaliland (Article 42 of the independent State of Somaliland Constitution 1960) (http://www.somalilandlaw.com)

 

2.3.2.     Sharia Law

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, other family affairs, such as family reconciliation, child maintenance, Nafaqa or Bill, and succession.

 

2.3.3.     Customary Law

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 into 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.

 

2.3.3.1. Classification of Somaliland Customary Law

As per other communities, Somali customary laws were unwritten, whether these rules are general or particular (special), but these unwritten rules were memorized and orally transmitted by the clan elders, particularly, Akils and wise men of the tribe, and verdict judges also passed from generation to next generation.

 

As outlined above, whenever the Somalis had to judge a case they used to ask the nature of the case if it was blood case (Penal) (Dhiig) or Civil (Dhaqan). In this regard, they also asked again if it was about family related case or property for giving further reasoning about the case.

 

Why are/were Somali/Somaliland customary laws not written? The answer is derived from three logical reasons:

 

 

Along with the above reasons, Somali customs were sourced the following: - Somali traditional Norms (Customs) and Sharia Law. The law makers in Somali customary law are elders and people with knowledge and wisdom, the process they followed for enactment of law related whenever the need arose. The nature of making a law was based on when the tribe, clans and Somalis were confronted with a problem they used to introduce a new law to solve or prevent such a problem. In this regard, whenever a law was adopted it was notified to the whole community and everyone in the villages was bound to abide by it.

 

As mentioned above, laws and rules are made as a result of a problem, happening or other problem within the community. General Assembly of elders and clan leaders was organized similarly. General Assembly was to come and convene in a place with water, around a well or lake. When General Assembly agreed on a convention (law, rule, statute) and approved it, the name of the law is created by using the name of the location where approved or the law is cited as a name reflecting the time period during which the laws were being discussed and approved.  

 

2.3.3.2. Nature of Somali Customary Law

The nature and essential characteristics of Somali customary law (Xeer) is a system of traditional laws formulated by Somalis over hundreds of years. In the past these laws were special for every specific community, including but not limited to farmers, camel herders, goat herders, hunters, and town dwellers. The most used laws today are:

 

 

Xeer functions as an important mechanism in maintaining social relations within and between clans. Xeer is the most accessible, used and preferred system for resolving disputes. The main character of Somali customary law is its long-inherited nature, yet it is more flexible to amend. The application of Somali Customary Law is more accessible to all people (poor or rich; minority or majority) making all Somalis equal before the law. Xeer is more transparent in terms of selecting the jury, following court proceedings, and announcing verdict and its appeal.

 

2.3.3.3. Judges in the Somali Customary Law

Judges or jury within Somali customary law were considered to be one of the experienced Wiseman in the community. Ordinary cases were judged by any experienced elder, but when a case is of first instance, it must be judged by elders who are considered experts in Somali culture and the law.[12] As such, cases of most seriousness are not entrusted to common elders but are referred to the most ethical and knowledgeable persons in the law. Somali court proceedings follow similar process within its current modern tribunal, even though such practice has not been institutionalized and understood as structure.

 

Somali judges apply non-written procedures during their ongoing Customary Law trials. Just as claims were not written statements, procedure was similarly of oral tradition passed on from generation to another because the nature of Somalis is of an oral society.

 

It is important to note that majority of Somali judges are males. Next, in Somaliland the elders (determined by age) dominate the customary law decision making. The younger members are not allowed to judge if the elders are present. As such, verdicts were dominated by aged people while the young have no role in law making.

 

2.3.3.4. Announcement of the Verdict and Appealing Against It

When the jury returns to the court, they announce their verdict. One of the selected jurors announces the verdict and the speaker explains how and why the verdict was reached, along with the points they considered and the precedent and case law they based their judgment on. Before the verdict is accepted and anytime during the court’s proceedings, either party may reject any person suspected of impartiality or bias from the selected jury.  In this regard, the two parties or their representatives should be present when the judgement is pronouncing and they should declare on the spot if they are happy and pleased to accept the verdict or are appealing against it.

 

2.3.3.5. Forms of Judgement

The forms of the judgement in both civil and criminal cases of Somali customary law are among one categories of the following judgement: either Compensation (magdhaw) or Moral compensation (xaal) or (Taqsiir), confiscations of property (Kala wareegid hanta) or immediate payment (Jilib carro) specially murder cases.

 

Xaal” is a Somali word which designates a compensation given to the offended person whether by word or action. The compensation in the earlier time was most of the time paid in animals, since Somali were not living in a monetary society[13]. But today in urban centers, and sometimes in villages, the monetary value is compensated.

 

Sometimes a bride was given as compensation. In that case the offended man would be told “We have offered you this girl as your wife for compensation” this would happen after securing the acceptance of the girl and that was the best way to compensate an offended man in the Somali culture.

 

Some forced marriages exist in Somali culture, which has positive and negative aspects. There are concerns about the bride’s rights but also about the legality and enforceability of marriage. In the clan and family relations, women’s consent is essential to recognizing a marriage. Otherwise it is forced.

 

2.3.3.6. Enforcing the Judgement

In Somali customary law, there are two ways that a judgment can be enforced. The first is voluntarily, when the party found guilty accepts the verdict and agrees to compensate the plaintiff according to the delivered judgement. The second is compulsory, where the police enforces the verdict by collecting from the guiltily by force whatever the court decided.

 

As stated above Somali customary law is based in oral history. As such it presents a good case for traditional legal development. It is difficult to fully summarize the law when the Somali cases and judgements were not written. However, this could be a starting point for further studies and analysis for the coming generations. Somali customary law is different from pastoral society to agropastoral, from north to the south; and some similarities can even be seen in Somali Ethiopia and Djibouti.

 

3.     Special Legal Institutions and Tribunals

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.

 

3.1. Somaliland Police

The Somaliland Police Force was established in 1991. Since that time, it has struggled to shed its identity as a remnant of a former colonial police. It remains a militarised institution, relatively inaccessible to the majority of the population, it lacks effective management, and its officers are poorly paid, poorly equipped and poorly trained. The Somaliland Police Act of 1993 is outdated and the applicable Police Regulations are those of 1973 (except in so far as they are inconsistent with the Somaliland Constitution 2001 and the Police Act). In 2012, a new Police Bill was approved by the Cabinet and has been remitted to Parliament for final passage into law.

 

In 2010, the Somaliland National Charter for Policing was agreed upon, with the goal of professionalising and modernising the Somaliland Police. The Somaliland Police is a key institution for maintaining Somaliland’s internal security and stability and the Somaliland government has recently committed itself to strengthening the law enforcement sector under the Somaliland National Development Plan 2012–2016.

 

The reform process currently underway in Somaliland is designed to address these problems through a comprehensive package designed to increase police accountability and enhance policing practice in line with international human rights law and established best practice.

 

3.2. Land Tribunal Dispute

Dispute Tribunals established by Law No. 17/2001 are composed of 7 members appointed by Ministry of Interior. At present time, there are only two functioning Land Dispute Tribunals in Hargeisa and Sahil, Awdal, while others in other regions are in the process.

 

3.3. The Ombudsman or Public Defender

There is not yet a well-developed understanding of how to establish such an office, which would deal with certain claims against the executive or defending the public interest.

 

3.4. Somaliland Human Rights Commission

The SLNHRC is an independent Human Rights state institution. It was established by the Somaliland Human Rights Commission Law No. 39/2010[14]. This Law was created via small amendments and then finally approved (again) by the House on 30/10/2010 (Ref GW/KF13/507/2010) and was signed into law by the President on 26/12/2010 (Presidential DecreeNo.0100/2010). This law consists of six chapters with 42 articles.

 

The members of the Commission were selected by a Committee set up under 10 of the Law and consisting of 3 members appointed by the President, 2 by the House of Elders and 2 Supreme Court Justices. Following the procedure under Article 10 of the Law, the Committee organised an open competition and selected in order of merit, 14 persons who were suitable for appointment as Commissioners. The President then appointed the 7 Commissioners from the list and the remaining selectees were held in reserve in order of their merit as assessed by the Committee. On 3 April 2011, the President announced the 7 appointees in a presidential Decree (No. 0123/2011) and on 27 June 2011, the House of Representatives approved the appointments on a vote of 49 for and none against or, other than the Presiding Officer, abstaining[15].

 

Its core mandate is to further the protection and promotion of HR in Somaliland. Many countries have similar bodies which Audit the government on HR. United Nations encourages governments to create NHR commission as a strategy towards enhanced protection & promotion of human rights Since 1948, when the Universal Declaration of Human Rights was signed by most of the countries around the world, countries started to apply its principles. Accordingly this consequently improved the human rights respect.

 

Article 10 of the Constitution of the Republic of Somaliland states clearly that “The Republic of Somaliland shall observe all Treaties and Agreements entered into by the former State of Somalia with foreign countries or Corporations provided they do not conflict with the interests an d concerns of the Republic of Somaliland” subsection 1 recognizes the need for conformity with International

 

3.5. The Status of Islamic Law in the Constitution

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. In addition to that, the Constitution provided under 130(5) that “All the laws which were current and which did not conflict with the Islamic Sharia, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland”. At the same time, laws which conform to the Constitution shall be prepared, and each such law shall be presented within minimum time scales set by the House.

 

3.6. Process of Law Making

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 bills 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:

 

 

All bills passed by the House of Elders by a majority shall be forwarded to the House of Representatives, which shall:

 

 

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.

 

3.7. Law Reform Commission

The government of Somaliland established a national commission (LRC) responsible for reforms drafts and suggests amendments for some of the Somaliland laws that may have been old or obsolete. The reforming process will be a critical review that eventually serves for best interest of Somaliland people through upgraded service delivery on law reform that subsidizes to the realization of a society that has democratic values, social justice and fundamental rights for all citizens. The LRC reviewing and reforming activities are involving in identifying and weeding out the laws or statutory provisions that became old-fashioned or redundant and being no longer in use.

 

During all this process, the Law Reform Commission is strengthening to create a strong public relationship through consultation and interaction with law reform bodies and institutions of the other countries, legal professional organizations and civil society entities. However, Somaliland houses of parliament enacted many national acts to toughen the legal infrastructure of the country in order to ensure the national identity and the determination of Somaliland as an independent state but no reforms of the penal code were involved. This is the reason why the Somaliland courts maintained the application of the Somali civil and criminal codes those are believed to be out-dated.

 

Being a part of Somaliland‘s statehood and reinforcing its national identity, the Law Reform Commission (LRC) is dedicated to monitor the social and economic changes within the political context. In general, some provisions of the penal code are contrary to the individual fundamental rights and freedoms guaranteed by the Constitution while some others are in contradiction with each other and not in line with Islamic sharia. As such, LRC continues this reform process because a comprehensive reform is needed, including substance, linguistic, as well as the structure.

 

4.     The Judicial Structure

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 raise 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.

 

The current Somaliland constitution under article 99(1) provided that The Judiciary consists of the courts and the Procuracy. Additionally, (103) stipulated that the Procuracy of the state shall consist of the Attorney General and his deputies.

 

4.1. Attorney General

Accordingly, the Structure of the office of the Attorney General of the State: Presidential Decree No. 2 of 16 August 1997. Dhismaha Xafiiska Xeer-Ilaaliyaha Guud ee Qaranka - Xeer Madaxweyne Lr. 2 ee 16 Ogosto 1997. This Decree has been amended by the Articles 44-46 of the Organisation of the Judiciary Law No. 24/2003.[16]

 

Further, article 106 of the Constitution guarantees independence of the Judiciary from the Ministry of Justice and as pointed out by the chairman of Supreme Court recently the budget of the courts is still controlled by the ministry. Another interesting fact is that the Ministry of Finance in the preparation of national annual budget divided the court structure where the Supreme Court can prepare their own budget but not for the whole judiciary. This means the budget of the lower courts is still controlled by the ministry.[17]

 

4.2. The Hierarchy and Structure of the Courts

There are two principal sources which empower the Courts of Somaliland and delineate the judicial structure, which are:

 

 

There are several different types of courts in the nation, each of which serves a different function. They are as follows:

 

 

As provided on August 14, 2006 by the then Acting Chief Justice, Somaliland has now 33 functioning courts of law, staffed by 87 judges.

 

4.3. The Jurisdiction of District Courts

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.

 

4.4. The Jurisdiction of Regional Courts

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.

 

4.5. Appeals Courts

The Appeals Courts deal with all appeals from the District and Regional Courts. Each Appeals Court is divided into:

 

·       Assize Appellate Section which deals with appeals from the Regional Assize Court, which are heard by two Appeals Judges and two assessors;

·       Juvenile Section;

·       Finance & Taxation Section; and,

·       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.

 

4.6. The Supreme Court (and the Constitutional Court)

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:

 

·       All appeals from the Appeals Courts;

·       Jurisdictional issues between the courts of the land;

·       Administrative suits relating to the final decisions of public bodies;

·       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,

·       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:

 

·       Civil section;

·       Criminal section;

·       Juvenile crime section;

·       Administrative section; and,

·       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:

 

·       Adjudicate on suits relating to the constitutionality of the acts and decisions of the Government and the Legislature;

·       Interpret the provisions of the Constitution and the laws of the land when these provisions are a subject of controversy; and,

·       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.

 

4.6.1. The Appointment of the Chief Justice

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.

 

4.6.2. Juvenile Justice Administration

The administration of juvenile justice is of practical relevance to Somaliland legal systems. It reflects the interests of society to promote the rule of law and aims to reintegrate the child accused of infringing the law. As such in 2007 a law on juvenile justice was approved in Somaliland by the parliament and signed with a Presidential Decree (No. 339/2008) issued on 21 April 2008 brought this Law in to force on that date. But, it has not yet been implemented due to economic constraints and lack of knowledge concerning legal matters on behalf of leaders of institutions and their staff. The law provides penal prosecution from the age of 15, and requires that the measures are proportionate to the circumstances of the child and the severity of the offense. It limits the maximum sentence to 15 years and prohibits corporal penalties, imprisonment and death penalty. However, article 34.1 stated that the placement of children in facilities of different categories or with different regimes shall be determined by a competent Court. Again, the court while deciding on the placement of the child shall take the following factors into account:

 

  1. The age and gender of the child.
  2. The gravity and nature of the offence committed by the child.
  3. The physical and mental conditions of the child.

 

Unlike various other countries where the age of lack criminal responsibility (doli incapax) has been reduced over the years, Article 10 of this Law raises the age of criminal responsibility from 14, which it was under Article 59 of the Somali Penal Code, to 15. However, as in the Penal Code, minors aged 15 to 18 shall be liable for any criminal acts committed if they have the capacity of “understanding and volition”. These changes are, however, more in line with the views of the UN Committee on the Rights of the Child (CRC/C/GC/10: General Comment No: 10 (April 25, 2007), paragraph 30-39) in the Somaliland Juvenile Justice Law (Law No. 36/2007.

 

5. Professional Standards

Due to the absence of a regulatory framework for lawyers in Somaliland, there is no over-arching governing statute for the legal profession or national code of conduct that all lawyers could and should follow. In practice, Somaliland lawyers can voluntarily join either SOLLA or SWLA and so, voluntarily assume their internal codes of conducts. But there is no general disciplinary mechanism overseeing their conduct. A Bar Association can be a useful tool to ensure that all practicing lawyers are observing the same professional standards in upholding the law.

 

6. Somaliland Legal Research

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. But in the recent establishment of Somaliland there are few legal websites which published the new laws and legal research information, including Somalilandlaw.com or Somaliland Parliament. At the same time, there is no compiled 100% complete library of every applicable piece of legislation which is currently in effect in Somaliland, including court decisions, executive (Presidential and Ministerial) decrees, and municipal ordinances every day.

 

6.1. Primary Legal Materials

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.

 

6.2. Case Laws

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.

 

6.3. Law Reports

In Somaliland, there are no law reports issues which document the annual reports of the courts, or the judgments and decisions of the courts. But the faculty of law at the University of Hargeisa publishes academic legal analysis document which is aimed to analyse the delivered judgements and comment by the Legal clinic documentation Lawyers, this lawyers are senior jurists/judges who already served as Supreme Court judges in number of years and retired from the judiciary.

 

6.4. Legal Journals

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.

 

6.5. Official Government Gazette

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.

 

7. The Legal Clinic

The Legal Clinic was attached to the Faculty of Law at the University of Hargeisa. Where this legal Clinic has been contributing to the improvement of the legal education of law students by providing them with an opportunity to apply and expand their theoretical understanding of the law in a client service context. This legal clinic is the first Legal aid clinic in Somaliland which is also the leading institution of the legal empowerment agenda. Therefore, the institutional Capacity of the Legal Clinic of Hargeisa University is to provide free pro-poor legal services for vulnerable groups and deliver quality clinical legal education strengthened.

 

Moreover, legal assistance and representation is provided for vulnerable groups with a particular focus on the needs of children, women and IDPs, and individuals on remand and in pre-trial detention. The goal of the Legal Aid Component is to offer free, sustainable, and pro-poor legal services for these groups in criminal & civil matters. Clinic Legal Education Component is to deliver quality clinical legal education in order to provide students with an opportunity to learn the practical, substantive and ethical considerations to practicing law.

 

Moreover, Access to Justice and Legal Awareness Component is raising awareness among key criminal justice stakeholders and civil society as well as public living in remote districts and villages, providing access to justice, offering mobile court services and Legal Clinic’s services, which are all prerequisite to the development and maintenance of a just and fair criminal justice system with a particular focus on marginalized individuals in the community.

 

Further, it is important to run and keep up to date the Legal Clinic Documentation Centre in order to collect information on cases dealt with by the Clinic and analysing and collecting data on human rights trends. And lastly, undertaking a study on Land ownership law and practice in Somaliland, presenting on the meaning of “arrest for rehabilitation” as provided in the new Somaliland Public Order, are all among some of the priority goals.  

 

7.1. Legal Clinic Structure

The Legal Clinic will be structured by the following five practice units, headed by clinical instructors:

 

 

8. Online Resources

This website is the largest legal resource that one can find on Somaliland laws. It contains all bills and enacted laws found at the Somaliland House of Representatives at http://www.somalilandparliament.com/. This is an online resource for individuals of the Somaliland Diaspora, primarily living in North America and Western Europe.

 



[1] Woodman (1999) “The idea of legal pluralism” in: Baudouim Dupret, Maurits Berger & Laila al-Zwaini(eds.), Legal Pluralism in the Arab World, the Hague: Kluwer Law International, 3-19.

[2] Chair, Centre for Comparative law in Africa, University of Cape Town: Honorary Professor for African Law, Centre for African Laws and Society, Xiangtan University.

[3] Journal of African Law, 58,1(2014),1-21SOAS, University of London,2014, 1st published online 4 February 2014.

[4] Legal system serious, the legal system of the Somali Democratic Republic by Haji.N.a.NoorMuhammed, law publisher 1972.

[5] The World Bank & International Financial Corporation. Doing Business in Hargeisa2012 at p. 31-35.

[6] Somaliland Constitution.

[7] Land Law and Islam: Property and Human Rights in the Muslim World was first published in 2006 by Zed Books Ltd. 7 Cynthia Street, London N1 9JF, UK and Room 400, 175 Fifth Avenue, New York, NY 10010, USA.

[8] Somaliland Constitution Article5.

[9] Land legal framework situational analysis Report of 2006 by UN-Habitat.

[10] Statement of Interview with the Director General of Ministry of interior Mr.A.samad O.Maal, this procedural regulation was aimed to implement the law No.1 and shall as procedural guideline upon the approval of the ministry of interior who is mandate by law the issue regulation for implementation of Law No.17/2001.

[11] For further reading on this issues see: http://www.somalilandlaw.com/.

[12] Ahmed Sheikh Ali Buraale, 2008, The Somali Customary Laws, published by Somali Community Literacy Center, Addisababa, Ethiopia.

[13] Ibid.

[14] This is the act that the commission was established as an independent commission.

[15] Ibrahim haji jama.

[16] Somalilandlaw.com at www.somalilandlaw.com.

[17] See the Somaliland Budget 2012, and 2013, as well as 2014.


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