SOMALILAND FAMILY & PERSONAL LAW
Since the re-assertion of Somaliland’s sovereignty in 1991, all matters relating to family and personal issues (such as marriage, divorce, succession etc) have been dealt in accordance with Islamic (Shafi) principles (augmented by customary law in limited aspects) and the 1975 Somali Family Law which was not widely used, except in the courts, before 1991 fell into disuse. The 1975 Law transgressed Islamic principles in its provisions relating to women and in particular, succession. In the eyes of the vast majority of the population, this fundamental flaw has made the rest of the law which dealt with less controversial issues of registration of marriage and divorce, maintenance, guardianship and wills etc unacceptable.
Under Article 6(3) of the Somaliland Organisation of the Judiciary Law, the District Courts have jurisdiction with all Islamic law issues which include all family and personal law issues. The vast majority of these issues are, however, dealt with outside the courts and, in 2005, for example, the District Court of Hargeisa, the capital city reported that it registered during the year of 2005, 285 marriages and dealt with 119 divorce applications (Source: Sh. Ismail Mohamad Ibrahim, District judge).
The District Courts dealt with family law matters from the adoption of the 1962 Somali Republic Organisation of the Judiciary Law i.e controversies where the cause of action has arisen under Shariat law or customary law as set out in Art. 6(3) of the 1962 Law. Prior to that Sharia issues were dealt with in Somaliland by the Qadis Courts which were originally set up under the Somaliland Qadis Courts Ordinance 1937 and operated under the Somaliland Subordinate Courts Ordinance 1944. Section 10(2) of the 1944 Ordinance listed the Qadi Courts Sharia law matters as those relating to marraige, divorce, family relationship, wakf, gift, succession and wills. Appeals from the Qadi Courts went to the Court of the Chief Qadi.
The need for a new Somaliland Family Law
The Somaliland Ministry of Family Affairs and Social Development (since August 2010, Minstry of Labour and Social Welfare) has set up a project to review the need for a new Somaliland Family Law. A preliminary report of the Ministry’s Legal Consultant (Mr Hassan Adan Abdi (Suudi)) of this issue is available here : Somaliland Family Code Situation Analysis - April 2010.
Any draft Family Code will have to be very widely consulted upon and it is likely that many will find it either too narrow or failing to encompass the very wide Islamic family law principles. There are nonetheless examples of Shafi madahab based Family laws, for example in Malaysia (Malaysian Islamic Family Law 1984 (as amended)) or much nearer, and in Somali, the Ethiopian Somali Region Family Law, which can be used as a basis to build on in drafting a new Somaliland Family Law.