Introduction to the Law and Legal System of the Islands of Comoros
By Michael Gyan Nyarko
Michael Gyan Nyarkois a Ghanaian lawyer with a decade of experience working on several legal and multidisciplinary projects across Africa and beyond. He currently works as Manager in the Litigation & Implementation at the Centre for Human Rights, University of Pretoria, South Africa.
Published September/October 2020
Table of Contents
- 1. Introduction and Background
- 2. Socio-Economic Context
- 3. The Law and Legal Systems in Comoros
- 4. Status of International Law
- 5. Legal Research Tools
The Comoros Islands, officially the Union of Comoros (also “Comoros”) are situated in Southern Africa at the northern mouth of the Mozambique Channel, about two-thirds of the way between northern Mozambique and northern Madagascar. Classified among the Least Developed Countries (LDCs), Comoros is one of the poorest countries in the world, with a per capita Gross National Income of US$ 1380 and an annual GDP growth of 3%. The population density of Comoros is among the highest in Africa, with approximately 457 people per km2 in 2019. Comoros has high levels of poverty (45.5%) and a chronic economic deficit and is considered a highly indebted poor country.
The Comoros archipelago is made up of four islands: Grande Comore, Anjouan, Mohéli and Mayotte. At present, the sovereignty of the Union of the Comoros is maintained in practice by all but Mayotte. Mayotte is under the control of France despite many UN resolutions affirming the sovereignty of Comoros over Mayotte. Today, after over 20 coups or attempted coups, Comoros is making efforts to ensure political stability and poverty eradication. A former French colony, Comoros gained independence on 6 July 1975.
The population of Comoros is a complex mélange of Arabs, Persians, Indonesians, Africans, Indians, as well as a minority of Europeans who settled on the islands between the 8th and 19th centuries. The majority of Comorian citizens are Sunni Muslims, comprising about 98% of the population. The remaining population is composed of Christians and other religions. The major languages spoken on the island are Arabic, French and Comoran (a blend of Swahili and Arabic). The capital city of Comoros is Moroni and the official language is French, which is the language of government communication and legislation
The population of the Comoros was formed with the arrival of African, Indonesian, Persian, Arab and Malagasy immigrants in different proportions depending on the region. These ethnic groups have strongly intermingled, which has resulted in a great ethnic homogeneity as well as cultural richness. Today the Comoros has a population of approximately 846,281 (2020 estimates) with an annual population growth rate of 1,4% (2020 estimates). About 70% of the population resides in rural areas and relies on small-scale agriculture for their livelihood (e.g. growing rice, corn, potato, peanut, cassava, vegetables and potatoes). Therefore, income generation is not very diversified. Currently, the Comoros ranks 156 on the Human Development Index, with US$ 3220 GNI per capita, and 42.4% of the population living in poverty by 2014. A large proportion of the population relies on remittances from the Comorian diaspora who reside mainly in France and Mayotte. Despite average growth of around 3% since 2014, the economy has not managed to achieve structural transformation, which is necessary to reduce poverty and deal with the high unemployment among the young population – in 2014, more than 50% of 15-24 year-olds were unemployed.
The 2018 Constitution of Comoros establishes the state as a unitary democratic republic with a three arm government: the Executive, the Legislature and the Judiciary. The Constitution establishes Sunni Islam as the official state religion.
Executive power is vested in the President, who is the Chief of State and Head of Government. The Presidency rotates among the islands for a 5-year term which is renewable once. In the performance of executive functions, the president is assisted by a Council of Ministers, comprising not more than 15 members appointed by the President. In addition to the Union President, each island elects its own Governor in charge of the administration of the island.
Comoros has a unicameral legislature, designated the Assembly of the Union of Comoros comprising a total of 33 seats: 24 members are directly elected by absolute majority. in 2 rounds if necessary. The other 9 are indirectly elected by the 3 island assemblies. Members of the Assembly serve 5-year terms. The Assembly is responsible for enacting laws, approving the budget and providing oversight over the executive.
The 2018 Constitution establishes an independent judiciary with a Supreme Court at its apex and subordinate courts such as the Court of Appeal, tribunal of first instance, community courts and religious courts. The High Council of Magistracy is mandated to assist the president in ensuring an independent judiciary. Judges and judicial officers are guaranteed independence under the Constitution and are only subject to the authority of law. Decisions of the court are binding on all organs of state, individuals and non-state actors.
The Cour Supreme (Supreme Court) comprising seven (7) justices is the highest court in the land for all matters, including administrative and constitutional matters, as well as disputes concerning the election of the president. The President selects two (2) of these judges, two (2) are selected by the Assembly of the Union, and the 3 Island Councils each select one (1). Supreme Court judges are appointed for life.The decisions of the Supreme Court are not subject to appeal and are binding on the executive, the legislative and all authorities in the territory of the Union.
Prior to the adoption of the new Constitution in 2018, the Constitutional Court was responsible for the adjudication of electoral disputes including disputes relating to the election of the President and referendums, as well as for assessing the constitutionality of legislation adopted by the legislature. The Constitutional Court was also responsible for adjudicating on individual rights and freedoms and the division of competencies between the Union and the islands. The Constitutional Court comprised eight (8) members; one was appointed by the President, one each by the then-three Vice Presidents, one by the President of the Assembly of the Union, and one each by the island executives. Members served 6-year renewable terms. With the introduction of the new constitution in 2018, all powers of the Constitutional Court were transferred to the Supreme Court.
The lower courts include the Court of Appeals, the Tribunal de premiere instance (Court of First Instance), the island village (community) courts and the religious courts. Religious courts make decisions based on Islamic teachings. These hearings generally concern family or personal relationships. These courts are scattered throughout the island. Lower courts or courts of first instance are located in towns on the islands and handle small disputes. The High Council reviews the decisions of the lower courts and consists of two members appointed by the President, two members elected by the Federal Assembly and one elected by the Council of each island.
Comoros has a mixed legal system comprising the civil legal code (Napoleonic code), Islamic law, and customary law (mila na ntsi). Most disputes are settled by village elders, kadis or civilian courts. Comoros is a member of the United Nations, African Union, Organisations of Arab States and the Organisation for the Harmonization of Business Law in Africa (OHADA). The laws of Comoros are published in the official government gazette Journal Officiel. Some of the basic laws of Comoros include:
- The Penal Code
- The Civil Code
- The Family Code
- The Labour Code
- The Nationality Code (instituted by Act No. 79-12/PR of 27 February 1980)
- Law establishing the National Human Rights Commission
- Law No. 64-1360 of December 31, 1964, on Trademarks and Service Marks
- Law of March 11, 1957, on Literary and Artistic Property
- Law of July 14, 1909, on Designs and Models
In terms of the 2018 Constitution, treaties are ratified through the enactment of the legislation to that effect. Once, ratified in this manner, treaties have a superior hierarchy to national laws, except a specific reservation is otherwise made. In situations where the Supreme Court declares that a treaty that the Union intends to ratify is contrary to the constitution, that treaty can only be ratified after a constitutional amendment to bring the constitution in conformity with the provisions of the treaty. International relations is maintained through the Ministry of Foreign affairs.
There are a few websites that provide information on Comorian law including the following:
- Droit-Afrique (Laws related to African Union, OAPI and OHADA)
- FAOLEX - Comoros (Food and Agriculture Organization of the United Nations) database of national laws and regulations on food, agriculture, and renewable natural resources
- NATLEX - Comoros (International Labour Organization) database of national laws on labor, social security, and related human rights
- RefWorld Legal Information - Comoros (UNHCR)
- WIPO Lex - Comoros (World Intellectual Property Organization)
- World Legal Information Institute
- UNDOC Sherloc Organized Crime Legislation
- US Department of State (Human Rights Report)
- Comores-Droit (provides information on Comoros laws and regulations)
- Presidency of Comoros (provides information about the executive)
- Comoros Customs website (includes laws related to customs)
- Central Bank of Comoros (includes laws on banking)
- CommonLii (includes access to some laws, treaties and some case law)
- JurisAfrica (provides paid access to some laws and case law)
- The World Law Guide (provides information on the laws of Comoros)
- Cornell Legal Information Institute (provides access to some laws
- Columbia University African Studies: Comoros
- Encyclopedia of Comoros Islands (provides information about Comoros including laws)
- Child Labor and Forced Labor Reports
- Child Law Resources (provides information on laws related to children’s rights in Comoros)
- The Law on use of force worldwide (provides information on use of force by law enforcement)
- MENA Rights Group (provides information on laws related to human rights)
- Taxnotes (provides information on tax related treaties entered into by Comoros)
- Comoros Constitution and Citizenship Laws Handbook: Strategic Information and Basic Laws: International Business Publication (2013)
- Comoros Mining Laws and Regulations Handbook Volume 1 Strategic Information and Basic Law (2014)
- Comoros Labour Laws and Regulations Handbook: Strategic Information and Basic Laws: International Business Publications (2013)
- Comoros Company Laws and Regulations Handbook: Strategic Information and Basic Laws - International Business Publications (2015)
- Comoros Energy Policy, Laws and Regulation Handbook: International Business Publications (2008)
- Comoros criminal laws, regulations and procedures handbook: strategic information, regulations procedures: International Business Publications (2015)
- Comoros electoral, political parties’ laws and regulations handbook: strategic information ... regulations, procedures: International Business Publications (2015)
- Comoros Social Security System, Policies, Laws and Regulations Handbook: strategic information and. basic laws: International Business Publications (2017)
- Tor Sellström, Africa in the Indian Ocean: Islands in Ebb and Flow (2015)
- Indian ocean: Five island countries (1995)
- M Bogdan, ‘Legal Pluralism in the Comoros and Djibouti’ (2000) 69 Nordic Journal of International law
- Bruce Baker, ‘Comoros: The Search for Viability’ (2009) 3 Civil Wars
- Country Watch ‘Comoros: 2016 Country Review’
- Adams & Adams Practical Guide to Intellectual Property in Africa
- Sophie Blanchy & Yvess Moatty, ‘The Local Civil Law in Mayotte: A deception?’
- Gino Naldi, ‘Separatism in Comoros: Some Legal Aspects’ (1998) 11 Leidin Journal of International Law 247.
- Sophie Blanchy,‘A matrilineal and matrilocal Muslim society in flux: Negotiating gender and family relations in the Comoros’, 89 Journal of the International African Institute 21 (2019)
- United Nations Office for Ocean Affairs and the Law of the Sea the Law of the Sea: Practice of Archipelagic States (1992)
- Paul Guy, Ouvertures dans le droit musulman comorien (1982)
- Abdou Djabir, Le droit comorien, entre tradition et modernité (2006)
- Abdou Chacourou Abal Anrabe, Le contrôle des finances publiques aux Comores (1992)
- Paul Guy, Études de droit comorien et approche de l'Islam comorien (1981)
- François-Pierre Blanc, Introduction historique à l'étude du droit musulman chaféite des Etats francophones de l'océan Indien: République de Djibouti-Union des Comores (2015)
- Thierry Flobert, Les Comores: évolution juridique et socio-politique (1976)
- Paul Guy, Cours de droit musulman à l'usage des candidats à l'emploi de cadis dans le territoire des Comores (1961)
- Mahamoudou Saïd, Les Comores, à qui la terre?: sous les conflits de propriété, les réalités de la gestion en commun (2016)
- Antoy Abdou, La Cour constitutionnelle: une institution à réformer de toute urgence (2017)
- Paul Guy, La constitution de l'état comorien de 1978 (1979)
- The AU and the search for Peace and Reconciliation in Burundi and Comoros
- Rafsandjani Mohamed, La Constitution des Comores: expliquée et commentée article par article(2016)
- Mahamoudou Saïd, Foncier et société aux Comores: le temps des refondations (2009)
- Ahmed Ali Abdallah, Le statut juridique de Mayotte: concilier droit interne et droit international: réconcilier la France et les Comores (2014)
- Julian W Witherell, Madagascar and adjacent islands: a guide to official publications (1965)
- Jaap de Visser, Nico Steytler, Derek Powell and Ebenezer Durojaye Constitution-Building in Africa (2015)
- Younoussa Imani, Rapport national état des lieux des disparités: genre, Union des Comores: version finale (2009)
- Emma Svensson, The African Union’s Operations in the Comoros: MAES and Operation Democracy. Swedish Defense Research Agency, Stockholm, Sweden, September 2008