SOMALILAND ORGANISATION OF THE JUDICIARY LAW
(Law no: 24/2003 as amended)
The riddle of the two versions of the same law
This law was first passed by the House of Representatives in 2003, but then spent 5 years being stuck between the two Houses and the President. In the meantime the Judiciary had no choice but to use the various versions of the old laws and, in particular, the 1962 Organisation of the Judiciary Law (English text) under Article 31(1) of the 1993 National Charter which only allowed the use of pre 1969 laws. With the adoption of the Interim Constitution in 1997 and the final 2000/1 Constitution which allowed the use of any pre 1991 laws which are not inconsistent with Sharia and with fundamental rights and freedoms, the 1974 Organisation of the Judiciary Law (Somali text) which largely repealed the 1962 Law became also relevant.
The 2003 Organisation of the Judiciary Law (Law No. 24/2003) was originally passed by the House of Representatives on 22 December 2003 and consisted of only 49 articles. On 13 February 2004 the House of Elders approved the rest of the law but rejected Clause 21(1) relating to the minimum age of judges which they amended and voted for a minimum age of 35 years (rather than 23). My enquiries indicated that that there was no Presidential Decree which has brought into force the 49 Articles law any time before (or even after) the new House of Representatives elected in September 2005 started reviewing the still draft Law. In May 2005, the Justice Committee of the House reported to the House their proposed changes which included, among other things, new provisions relating to an annual conference of the judiciary (Article 56 to 59) and eventually a 60 Article version was considered and approved by the House.
The President’s main objection to the House approved law centred on Article 11 of the Law (corresponding to Article 10 of the 49 Articles version) and relating to the appointment and dismissal of Supreme Courts justices. Article 11(2) as previously drawn in the proposed bill stated that “the (power of) appointment and dismissal of other judges (i.e excluding the Chairman) of the Supreme Court shall, after consultation with the Judicial Commission, be vested in the President of the Republic of Somaliland, and the House may approve the dismissal on a simple majority vote”. I understand that the President’s view was that Article 105(1) of the Constitution obliged the President to consult the Judicial Commission only when appointing the Supreme Court judges; that it is only the Court Chairman’s appointment (and, under Article 105(3), dismissal) that required confirmation by both Houses of Parliament; and that Article 105 said nothing about approvals or confirmation of justices by the House of Representatives, on its own.
Indeed Article 105(3) requires the confirmation of both Houses of the appointment of the Chairman of the Supreme Court, as well his dismissal. The position of the House was that as this clause was silent about the procedure of dismissal of other Supreme Court justices, the independence of the judiciary would be advanced by the additional security of House confirmation of such dismissals. This, however, missed the point that Article 105(1) (unlike the its US Constitution counterpart) did not make the appointment of Supreme Justices subject to parliamentary confirmation, and simply left both the appointment and dismissal of such justices as being within the powers of the President only. There was in impasse on this point, but eventually the House agreed to the President’s proposal in relation to Article 11 and endorsed the change on 15 March 2008 on a vote of 23 for the change, 14 against and 8 abstaining. As the House could not muster the two thirds majority needed under Article 78(4) of the Constitution to overrule the President’s amendment, any rejection, at this stage, would have led to the whole Bill lapsing completely. Therefore the amended Article 11(3) [of the 60 Articles version of the Law] no longer includes the reference to the approval of the House for dismissals of Supreme Court justices, and also points out, as the Constitution mandates, consultation with the Judicial Commission on such appointments. It seems to leave though such consultation with the Commission in dismissals of the justices which is not in the constitution and may well have been a drafting error in reflecting the agreed Article change. In contrast, the corresponding version of this clause in the 49 Articles version of the Law (Article 10(2)) simply states that the President shall consult the Commission in the appointing Supreme Court justices but this does not extend to their dismissals, a position which is more in line with the provisions of Article 105(1) of the Constitution. It is the case also that the contested clause about the appointment and dismissal of Supreme Court justices is numbered differently as 11 in the 60 Articles versions and 10 in the 49 Articles version.
The next action of the President in receiving the grudging approval of the House in respect of his objections to the Law was therefore important, as in my view, line item approval (i.e part of a bill approval) by the President is not permissible under the provisions of the Somaliland Constitution. In this case instead of decreeing that, once his objections have been acceded to by the House, the whole law would come into force, the President, in Decree No: 337/042008 of 8 April 2008, stated ONLY that Article 10 of the Law has come into force, and did not mention the rest of the Law. There was also no mention in the Decree that the other articles of Law had already been approved by the President. The House of Representatives then proceeded to promulgate the 60 Articles version which they have already approved and then published it on its website together with the Presidential Decree and the House Resolution agreeing to the President’s objection to the previous version of Article 10. In contrast, the Office of the Presidency attached the same Decree and the same House Resolution to the 49 Articles version of the Law.
As the President’s Decree states that it was Article 10 (and not 11) that he has implemented and put in to force and as the House confirmation of their vote and endorsement of the President’s amendment (ref: GW/KF-6/419/2008 of 19 March 2008) also refers to their agreement to “the President’s proposal relating to Article 10”, the immediate questions that arise are which text were the President and the two Houses referring to when discussing Article 10? If it was the 60 Article version which the House has passed and later agreed to the President’s objection, then despite the President’s decree referring to only one article and in the face of no other stated presidential objections to the law within the set the time limit of 21 days (under Article 77(5)), the House could promulgate the Law itself under Article 77(6) of the Constitution. If, however, it was the former President’s position that at all times he was only considering the 49 Articles version, then that does not square with the lengthy amendments and additions made to the Law by both Houses and forwarded to the President. We can, so far, trace no other Presidential Decree issued before 8 April 2008 and relating relating to this Law. Hence the riddle which should have by now being solved and set right. Many of the the provisions of the two OJL versions are similar, which perhaps accounts for the lack of urgency, but the uncertainties should be brought to an end soon. There has been an ongoing programme to do that and a widely consulted new draft version of the Law, which currently runs to 92 Articles, is being considered for finalisation and, in due course, submission to the cabinet and the House.
To improve further the work of the courts and the management of cases, it is also, in my view, time that:
- Separate Special Rules are drafted for a) the Supreme Court, b) the Constitutional Court and c) the High Court of Justice (all variations of the supreme Court);
- The Italian Civil Law model of administrative law cases (including any relating to public finance and petitions under the Financial & Accounting Procedures of the State Law ) being dealt by the Supreme Court as a first instance court (under Article 10(2)(c)) should be changed and such cases should be dealt with by administrative law benches of some of the Regional Courts with appeals going to the Supreme Court (leapfrogging the Appeal Courts);
- the Civil Procedure Code should be substantially overhauled as even the Italian CPC that it was based on has been considerably changed since and we make recommendations in the page relating to the Code;
- the Criminal Procedure Code (which is based on the Somaliland Criminal Procedure Ordinance) needs updating to bring it in line with the changes that have been made to the similar codes over the last 50 years; and
- a new new Civil and Criminal Evidence Law is urgently needed which will an update of the Evidence Law applied in Somaliland until 1964.
Here are copies of the two OJL versions (the 60 articles version and the 49 articles version of the OJL2003):
- The OJL 2003- 60 ARTICLES VERSION (AND THE PRESIDENTIAL DECREES) WHICH HAS ALSO BEEN CIRCULATED BY THE HOUSE AS THE OFFICIAL FINAL VERSION - It appears that this longer version of the Law is mostly used as indicated by the holding of annual judicial conferences which are mentioned in this version and not in the 49 Arts. version.
- The OJL - 49 ARTICLES VERSION (large scanned pdf file - smaller pdf copy of the law (49 Arts.).
- Both versions above include the identical House final Resolution and the President’s Decree.
To assist in the comparison of the two texts of the OJL, we have prepared a print which sets the provisions of the two versions against each other in one document (OJL TWO VERSIONS Comparative Text). Until the new Law is passed, Somalilandlaw.com will be referring to the 60 Articles versions in its articles and pages.