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Somaliland Civil Procedure Law BACKGROUND...New Updates: Nov 2013 Until October 1974, the laws governing civil procedures in Somaliland (then known as the Northern Regions) were the previous civil procedure laws of the independent State of Somaliland and the preceding Somaliland Protectorate. Various Somaliland Orders in Council from 1899 onwards extended the application of Indian and British laws to Somaliland Protectorate and on independence in June 1960, section 42 of the 1960 State of Somaliland Constitution and its Schedule 2 listed the continued application of various, some of which related to civil procedures. These were:
Additionally, other Ordinances such as the Execution of Money Decrees, the Somaliland Civil Procedure Ordinance 1923 and various other ordinances relating to the changes in the courts’ structures also had an effect on civil procedures. Nonetheless the Indian Code of Civil Procedure remained the main law dealing with conduct of civil litigation in Somaliland until the mid-1970s. In all civil (and criminal) cases, however, courts were enjoined by law (for example, under s.12 of the Somaliland Order in Council 1930) to be guided by Somali customary law, ‘so far as it is applicable and is not repugnant to justice and morality or inconsistent with any Order in Council or Ordinance, and (b) shall decide all such cases according to substantial justice, without excessive regard to technicalities of procedure or undue delay’. Kadis Courts dealing with family (and other personal) matters applied Islamic law, but after union with Somalia in July 1960 and the introduction, from 1962, of a unified single courts (consisting of first instance district and regional courts; two appellate courts - one for the Northern Regions (Somaliland) and one for the Southern Regions (Somalia) - and a Supreme Court, all the courts were all enjoined, under Article 9 of the 1962 Organisation of the Judiciary Law (Law No. 3 of 12 June 1962), to apply ‘(a) the Shariat law or Customary law in civil controversies where the cause of action has arisen under said law; (b) statutory law in all other matters’. This meant that the courts were unified but although there was still a bifurcation of sharia law or customary law on the one hand, and statutory law on the other, Article 98(1) of the 1960 Constitution stressed that the latter, statutory law, ‘and provisions having the force of law shall conform to the Constitution and to the general principles of Islam’. Whilst the criminal laws of Somaliland and Somalia were integrated in the early to mid- 1960s, primarily to avoid too many disparities in the treatment of offenders in the two territories, no such integration was achieved in the civil and commercial laws, as well as in the legal profession until well into the 1974 in respect of civil procedures. Throughout the 1960s (and the early 1970s), therefore, the former Somalia Regions applied the Italian Civil Procedure Code, whilst the former Somaliland Regions applied the Indian Civil Code of Procedure (as amended) and other relevant evidence and procedural laws. This also meant that until the military coup of 21 October 1969, the Somali Republic Supreme Court cases which arose from cases from the former Somaliland regions were presided over by a judge conversant with Somaliland laws and for most of the 1960s this was an Indian judge, Haji N A Noor Muhammad (and Vice-President of the Court), and for short period before the coup by a UK trained judge (and, by 1969, President of the Court for a short period). On reassertion of its sovereignty in May 1991 and the establishment of peace after the long war, Somaliland started to re-build its political and legal institutions. The Somaliland National Charter of 25 April 1993 (Article 31(1)), was specific in wiping away, at a stroke, the former Somalia dictator’s laws, and stated that ‘laws in force before 20 October 1969 and which do not conflict with the Islamic Sharia, the rights of individuals and fundamental freedoms shall be implemented in the territory of the Republic of Somaliland’. As it became clear that some laws passed during the 20 year dictatorship may take longer to replace, the 1997 Somaliland Interim Constitution (Article 151(7))accepted that all the laws which were in force then and which did not conflict with the Islamic Sharia and/or fundamental rights and freedoms shall remain in force until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland. This formula was repeated in Article 130(5) of the final 2000 Somaliland Constitution (the Somaliland Constitution) adopted at the national referendum in May 2001. This was based on pragmatism, and meant that the main codes issued in the 1960s democratic government and the non-security related or other legislation passed during the dictatorship would continue to be in use until such time there was an opportunity to change them and subject to their provisions passing the test of conformity with both Sharia and fundamental rights and freedoms and with the Somaliland sovereignty related provisions of the Constitution. Such Codes and laws will have to be therefore read with the fundamental provisions of the Somaliland Constitution, and all references to the Somali Republic are read as referring to the Republic of Somaliland. Somali Civil Procedure Code 1974 The Somali Civil Procedure Code, LAW No. 19 of 27 July 1974, came into force on 21 October 1974 and expressly repealed the previous Somaliland laws. Comment: The Code was based on the then Italian Civil Procedure Code which has since been extensively amended and is therefore in considerable need for modification and amendments. The considerable delays in civil cases in Italy have in the past incurred the criticism of the European Human Rights Court under Article 6(1) (fair trial within a reasonable time) of the European HR Convention. The three stages -introductory, proof-taking, and decision making- of the judge led inquisitorial litigation and the predominance of written over oral elements, the lack of immediacy between the sources of evidence and the adjudicating judge and the piecemeal character of the procedure have been criticised for contributing to extending the duration of litigation in the Italian Civil Law system. This is in sharp contrast to the procedures under the Somali Criminal Procedure and the pre 1974 Somaliland Civil Procedures which were based on adversarial systems and witness evidence to be tested at trials. Nonetheless the Indian Civil Code of Procedure was itself criticised by the Indian Law Commission in its 1964 Report on the Code for contributing to excessive delays which they stated was a problem that was as ‘old as the law courts’. The ILC summarised a ‘fair trial’ in the adversarial system as meaning that – ‘… each party must know the case of the other party (pleadings), that each party must disclose to the other party all documents which are relevant to the subject-matter of the dispute between them (discovery and inspection), that the Court should determine the points of difference between the parties (issues), that each party should be permitted to lead evidence in support of its case (examination of witnesses) and, finally, that each party should be heard before judgement is delivered. An ideal Code is one which strikes a just balance between a fair trial and expedition. Subject to the necessary safeguards to ensure a "fair trial", the procedure should be so simple that "it is easier to decide a case than to invent reasons for not deciding it".’ These few comments are not advocating for the superiority of one system versus the other. Indeed the two litigation systems are getting closer to each other with, for example, the adoption, in England, in 1999 of the Woolf Reforms (Access to Justice) which introduced detailed Civil Procedures Rules giving judges extensive powers to manage the conduct of cases through pre-hearing directions and managed early disclosures of relevant evidence. The way forward for the currently mixed and eclectic Somaliland system is to amend extensively the 1974 Code and introduce new changes in relation to the pre-trial and trial procedures that combine judge led management of the conduct of civil case with an adversarial system of full disclosure of evidence and testimony tested at a main hearing. It also time, in our view, that a separate Civil (and criminal) Evidence Law is introduced as was the case in Somaliland previously. The evidential provisions in both the Civil Procedure and the Criminal Procedure are both woefully inadequate. Our recommendation is therefore not a return to the past but more of ‘back to the future’ so we can catch up with some of post Woolf modern Civil Procedure Laws in African or Asian countries. The 1974 Civil Procedure Code Provisions Firstly, these are some of the amendments of the Code:
Secondly, copies of the Code are set out below:
We set out below the actual provisions of the Code in small scanned copies of the Somali version XEERKA HABKA MADANIGA in the table below listing the main chapters headings in Somali (and our translation if the headings into English:
CIVIL PROCEDURE CODE (Law No. 19 of 27 July 1974) XEERKA HABKA MADANIGA ( Xeer Lam. 19 ee 27 Luulyo 1974)
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