SomalilandLaw.com Comments on
On 27 August 2006, the Somaliland Armed Forces Court of first instance sitting at Hargeisa sentenced four Hargeisa Prison officers to prison for terms ranging from one year to nine years. The officers were at a prison watch when, on 27 March 2006, six prisoners detained for terrorism offences attempted to escape. This was a serious incident concerning dangerous prisoners, and the officers were accused of dereliction of duty and other charges under (we assume) the 1963 Somali Code of Military Criminal Law in Peace and War (as amended).
Somalilandlaw.com’s concern about this matter is the fact that 15 years after the dictatorship, we are still dealing with prison officers (and police officers) as members of the armed forces, rather than as members of uniformed law enforcement public officers.
The incorporation of the corrections (or custodial) corps and the police into the “armed forces” (ciidamda qalabka sida) started with the onset of the military dictatorship in 1969 when the military junta co-opted some police generals, but not the prisons “general”. Siyad Barre’s Constitution mentioned the duties of the “armed forces” under Articles 108 which included fighting the enemies inside and outside! In contrast, the 1960 Somali Republic Constitution mentions briefly the police separately from the “Armed Forces” in Article 97(4) in their role of working with the judiciary. So what is the position under the Somaliland Constitution? Like the 1960 Constitution, the Somaliland Constitution mentions the Police and Corrections “Forces” (Ciidamada Booliiska iyo Asluubta) in Article 124 separately from the National Armed Forces or, more literally, the National Force (Ciidanka Qaranka) which is dealt with in Article 123. The duty of the National Armed Forces is the protection and defence of the country. Although both the police and the corrections corps are referred to in the Constitution as “ciidan” i.e force, their duties are described in Article 124 as being “protecting the peace and enforcing the law” in respect of the police and “guarding and reforming prisoners” in respect of the corrections force.
As for the relevant courts, Article 100(5) of the Somaliland Constitution says that Somaliland shall have, in addition to the normal courts, courts for “the National Forces” (Ciidamada Qaranka) and Article 104 adds that the courts of the Forces shall have special jurisdiction in hearing criminal charges brought against members of the National Armed Forces (Ciidamadaa Qaranka) in times of peace and war. Both these Articles talk about “Forces” (Ciidamada) in plural whilst Article 123 refers to the “National Force” (Ciidanaka Qaranka), which suggests that the other “forces” are those mentioned in the following Article 124, i.e those of the police and the Corrections. But, if that is the case, why not deal with them all in one Article as in the Siyad Barre Constitution and more importantly why refer to one of them only as the “National Force” (Ciidanka Qaranka)? So there are two possible interpretations:
a) Disregard the word national (Qaranka) in Articles 100(5) and 104 and 123, and as the word “force” appears in all these Articles as well as Article 124, then the Armed Forces Courts will also apply to the police and the corrections forces; or
b) the use of the plural word “forces” in Articles 100(5) and 104 is not significant as there is only one “national” force under the constitution, i.e the “Ciidanka Qaranka” described in Article 123 which corresponds to the military, as a whole and may well involve other various forces such as the Army, Air Force, Navy etc and hence the armed forces courts relate to them only, and not to police and corrections “forces”. After all, the use of the phrase “force” does not always carry military connotations, as many countries often described their police as a “force”.
With these difficult issues about
interpretation, I am not surprised that an assumption was made that Military Courts
were the right forum for these cases against the prison officers, but there are
enough arguments, in my view, for a definitive interpretation to be
sought from the
Until the Constitution is changed to make this issue much more clearer, Somlilandlaw.com urges that:
a) Parliament and the courts should interpret the Constitution in a way which takes the police and corrections services out of the jurisdiction of Military Law in criminal matters. The Penal Code can deal adequately with issues such as dereliction of duty, and, in any case, new offences and disciplinary codes for both services can be introduced to plug any gaps.
b) As the National Armed Forces (Ciidanka Qaranka) are about to be given proper military ranks, no similar ranks should be extended to the police and the corrections services. No more police or prisons Generals or Colonels, please – these ranks should recerved for the military only.
should go back the
d) Parliament should take this demilitarisation further and when reviewing the Police Law, should add that only members of the police service shall have powers of arrest. This will not stop the police having special units, as needed.
e) Parliament should, at the same time, ensure that no other secret para-military forces, which are unacceptable under the Constitution, develop and that all government civilian intelligence units operate under a law and are accountable through parliamentary oversight undertaken by a special Committee of both Houses.
7 September 2006