Somaliland Criminal Justice System
This page will be covering issues of general concern to the Somaliland Criminal Justice system and in particular guidelines and other relevant studies or tools that address the practical operation of the criminal justice system and its various components. Leaving aside, for the moment, the not inconsiderable influences of both the Somaliland Customary law and Sharia principles on criminal matters, the formal statutory law based criminal justice system consists of the institutions and agencies developed since the Somaliland Protectorate years which respond formally to the commission of criminal offences, such as the police, the prosecution (known as the procuracy - xeer-ilaalinta - in Somaliland since the union with Somalia) headed by the Attorney General, the courts and the Corrections Force (Ciidanka Asluubta) which was known as prison service before 1975. Lawyers are of course also an essential component of the justice system and so is the legal aid system that provides the services of defence lawyers.
Whilst we will consider mainly this statutory law based system, we shall also cover below customary law and islamic law processes that are used in tackling some types of criminal offences. Prominent among these processes is the system of dia compensation for injuries and death arising from criminal offences (and also in many situations that are classed as civil wrongs in the formal statutory system) and which is grounded on both customary and Islamic laws and is central to the resolution of criminal cases outside the formal statutory criminal justice system.
An overview of the Somaliland Criminal Justice System and its Development ... Coming ...
Linked pages on the laws underpinning the Somaliland Criminal Justice system:
- The Somaliland Police. Many of the powers of the police are currently principally covered by the Criminal Procedure Code (CPC - below) and various other laws, but it is hoped that when a new new Police Law is finalised, it would, as was the case before 1965, under the 1958 Somaliland Police Ordinance, include in more detail police powers and investigations which are not currently covered adequately in the CPC.
- Somaliland Judicial System. Current Somaliland Organisation of the Judiciary Law.
- The Somaliland Procuracy - see the Organisation of the Judiciary Law and the Criminal Procedure Code.
- Somaliland Corrections Service and Prisons laws.
- Criminal Procedures - see the Criminal Procedure Code. Note the widely available English (and recently translated ) copies of the this Code do NOT include many amendments to this Code since it came into force in 1965 and in particular the statutory changes relating to the Somaliland Criminal Justice system. We shall be publishing later this year an annotated copy of the Somaliland Criminal Procedure Code. This Code is particularly relevant to the Somaliland as it is based on the parts of the pre 1965 Somaliland Criminal Procedure Ordinance No 4 of 1926, as amended, and the Indian Evidence Act 1872 (as amended) which was applied in Somaliland from the late 19th century to, in criminal matters, 1965.
- Criminal Procedures relating to young people - Juvenile Justice Law.
- The Somali Penal Code provisions relating to punishment and civil sanctions (Book I, Part IV to Part VII), which though part of the Code deal with ‘procedural matters’ of sentencing, types of punishment.
- Restitution/Compensation out of criminal offences can be dealt by the same criminal court that dealt with the criminal offence under Arts. 158 to 160 of the Penal Code and Arts. 130 - 131 of the Criminal Procedure Code. The customary (and Islamic) dia principles dealing with compensation which underpin the right to compensation for a civil (tortious) wrong (under, for example, Art. 160 of the Civil Code) would then come into play. This concept was one of the main modifications of the Penal Code which was otherwise overwhelmingly copied from the Italian Penal Code. Prior to 1964, Somaliland used the Indian Penal Code (and common law)as its many other former British protectorates/colonies.
- Unlike the dictatorship period of 1969 to 1990, the Somaliland criminal justice must be grounded on the application of the equality and fundamental rights and freedoms principles which are set out in Article 8 and Articles 21 to 36 of the Somaliland Constitution (2000) and under Article 21 of the Constitution, all the state criminal justice institutions are ‘specifically bound by’ the fundamental rights and freedom provisions. Furthermore all such rights and freedoms ‘shall be interpreted in a manner consistent with the international conventions on human rights ...’. The 1979 Dictatorship Constitution included no less than 19 Articles on fundamental rights and freedoms which counted for nothing when it came to the then police, security and military forces, and their special laws and courts as well the subsumed ordinary courts.
- Under Article 130(5) of the Somaliland Constitution, all the provisions of the pre-1991 legislation such as the Criminal Procedure Code (CPC) and the Penal Code (PC) are still applicable so long as they do not conflict with Islamic Sharia or with individual rights and freedoms. As there is a specific duty on all state criminal justice institutions (including the courts) to be bound by the fundamental rights and freedoms provisions of the Constitution under Article 21 of the Constitution, it is incumbent on them to apply and interpret the pre 1991 laws in a manner which is consistent with the constitution. This will involve, in my view, disapplying any provisions in the CPC and the PC which are clearly contrary to the modern concepts of fundamental rights and freedoms enshrined in the Constitution. It is time that Constitutional Court gives a lead on the practical application of this principle but that still requires appropriate cases to be referred to the court by the lower courts and defence lawyers advancing such cases on behalf of their clients. New Rules of the Court setting out the procedures for such challenges are also long overdue.
Somaliland Legal Aid in Criminal cases:
Somaliland Constitutional Fundamental Rights & Freedoms and the Criminal Justice System
and linked International Standards (to follow)
The 2015 Somaliland Criminal Justice Compendium (UNODC)
On 31 March 2015 UNODC launched a ‘ new tool designed to enhance the judicial system of Somaliland‘ titled the Criminal Justice Compendium to be used by the police, prosecutors, legal aid practitioners and judges.
Chief Justice Yusuf Ismail, commented at the launch of the tool that the “Compendium includes international norms and standards and adapts them to reflect the challenges we face here in Somaliland. It will be an invaluable resource for the training and mentoring of our justice professionals for years to come."
The Somaliland Criminal Justice Compendium consists of six English and Somali language tools and manuals on crime prevention and criminal justice in Somaliland. The following English language parts of the Compendium has so far been published for reference:
More to follow on the Compendium.
‘Horses for Courses’ ? Customary ‘law’ and Criminal Justice