SOMALILAND PRISONS LAW
(Updated June 2018)
Article 27 (8) of the Somaliland Constitution: “The purpose of “prisons is reform and correction. The state is responsible for the rehabilitation and skills training of prisoners so that they can return to society with reformed characters.”
Legal History of the Somaliland Corrections Corps (known previously as the Somaliland Prisons Service)
Somaliland prisons before November 1949
Before 1 November 1949, the control of prisons in Somaliland came under the Commissioner of Police. Section 70 of the 1927 Police Ordinance No. 2 of 16 June 1927, as amended, (which established the ‘Somaliland Police Force’) laid down that the Somaliland Protectorate Governor may ‘[c]ause such numbers of men and women as he shall think fit to be enrolled as water police and prison police required for special departmental duties and may by rules under this Ordinance provide for the designation, constitution and otherwise thereof’. The powers conferred by this Ordinance on the Commissioner of Police were to be exercised in the case of the Water Police by the Chief of Customs and in the case of the Prison Police by the Superintendent of Prisons or his delegate. Such water and prison police were considered to be ‘police officers ‘ within the meaning of the Ordinance and ‘shall perform such duties as the Chief of Customs and the Superintendent of Prisons or his delegate, with the approval of the Governor, may from time to time direct’. The law that dealt with prisons then was the very short 1918 Prison Discipline Ordinance, No. 2 of 14 July 1918, and the more detailed Prisons Rules and the Prisons (Dietary) Rules issued under s. 4 of the 1918 Ordinance.
By 1949, there were local prisons in all the six Somaliland principal districts’ headquarters which held ‘prisoners on remand, those awaiting trial and short term prisoners’, and a central prison at Mandera where ‘all long-term prisoners’ were confined (Somaliland Protectorate 1949 Report, HMSO 1950, p.25). New prisons were completed that year at Hargeisa and Burao.
Formation of the Somaliland Prison Service
A Superintendent of Prisons took over on 1 November 1949 control of the Central Prison (in Mandera) and the training of new prison warders continued to be undertaken at the Police Training School. In effect, this date marked the formation of a dedicated and trained prisons department/service which was separate from the police force, and in early 1950 the Commissioner of Prisons (as Superintendent of Prisons) was in charge of a prison staff of one Assistant Superintendent and 120 Warders. A new law, the Somaliland Prisons Ordinance No. 11 of 18 July 1952 repealed all the previous prisons laws and, under section 5, stated that ‘[T]here shall be established in the Protectorate a prison service to be known as the “Somaliland Prison Service”’. The Service ‘shall consist of a Commissioner and such other staff in such order of seniority as the Governor may from time direct by notice in the Gazette’ (section 6). All persons who were previously serving as prison officers were deemed to be appointed under the new Ordinance with such new designations of rank as the Commissioner of Prisons, with the approval of the Governor, may decide (section 6).
The long title of the 1952 Prisons Ordinance was ‘an Ordinance to consolidate and amend the law relating to prisons and to provide for the organisation, discipline, powers and duties of Prison Officers, and for matters incidental to’ and consisted of 93 sections grouped into 17 Parts. Detailed Prisons Rules (GN 33 of 21 May 1953) were introduced and came into force in 1953. These consisted of 112 Rules grouped into 10 Parts and dealt with in detail matters relating to the prison officers, prisoners and the prison administration. Many of provisions the Ordinance and the Rules appeared in the later main prison laws and regulations of ‘Somali Republic’ and of the current Somaliland prison laws and regulations (see below). See here lists of the arrangements of the sections of the 1952 Prisons Ordinance (93 sections) and of the 1953 Prisons Rules of the 1953 Rules (112 Rules).
In May 1955, a Government Notice (GN No. 26 of 1955) stated that ‘the Somaliland Prison Service’ shall consist of the following ranks in order of seniority:
- Assistant Superintendent of Prisons
- Prison Assistant (previously referred to as Assistant Superintendent but changed in May 1955 – Amending Ordinance 8 of 1955, s.3)
- Chief Warder
- Sergeant Warder
- Corporal Warder
Senior officers (above Chief Officer/Warder) were appointed by the Governor with the approval of the Secretary of State and other prison officers were appointed by the Commissioner, as the Governor may direct. Section 12 of the 1952 Ordinance also allowed, with consent of the Commissioner of Police, the temporary appointment of police officers, below the rank of sub-inspector, as prison officers where there is insufficient prison officers ‘to secure the good management and government’ of a prison.
In August 1953, the places declared as ‘prisons’, other than the Mandera Central Prison were in all the six towns of the six districts (Berbara, Borama, Burao, Erigavo, Hargeisa, and Las Anod) as well as the police station at Zeila (GN No. 53 of 1953). By 1959, other than the Central Prison which also included a young prisoners’ wing (for those aged 16 to 21 years), all the six districts’ prisons were operational and held a daily average prison population of 636, more than half of them in the Central Prison, where the majority of the convicted prisoners were kept (Somaliland Protectorate 1958-59 Report, HMSO 1960, p. 39-40). Various local police stations were also officially declared under section 3 of the 1952 Ordinance as ‘police lock-ups’.
Incidentally also the dated and restrictive 1929 Lunacy Ordinance, No. 2 of 7 February 1929 and the brief 1936 Lunacy Rules, GN 27 of 1937 (as amended in 1947 (GN 25 of 1947) which included the places appointed for confinement of ‘lunatics’ (besides the Berbera ‘Lunatic Asylum’), the Berbera Central Prison and all the District Prisons were repealed by the 1953 Mental Disorders Ordinance No. 14 of 11 October 1953 which was described then as containing ‘more comprehensive and modern provisions’. The linked Mental Disorders Regulations (GN No. 62 of 1953) set out, among other things, that the Berbera Mental Hospital was prescribed, under section 2 of the Ordinance, as being an institution ‘for the reception, treatment or detention of two or more persons suffering any mental disorder or defect’ (Reg. 2). The Regulations also listed the hospitals, prisons and places prescribed as suitable for observation of a person an officer (administrative or police) apprehends, under section 8 of the Ordinance, ‘if he has reason to believe that [the] person apparently mentally defective is - (a) dangerous to himself or to others, or (b) wandering at large and unable to take care of himself’ and that it is necessary for the public safety or for the welfare of the person that before any other proceedings are taken under the Ordinance the person be placed under care and control. The places listed (in Reg. 3) were (a) all Governmental hospitals; and (b) all prisons situated in places where a Government medical officer is stationed . Nonetheless the 1953 Mental Health Ordinance was clear about the ‘authority for the detention of patients’ and stated unequivocally that ‘[s]ubject to the exceptions expressly provided by this Ordinance, no person shall be received or detained as a patient in an institution or other place except under the authority of a warrant or order of the Governor, a Judge or a magistrate in accordance with this Ordinance, or the Criminal Procedure Ordinance’ (section 6). [See more at the forthcoming page on the need for an up to date Somaliland Mental Health Law bringing up to date the 1953 law and regulations and for updating the old mental capacity provisions of the Civil Code, as no new mental health laws were promulgated since then! ]
Independence and union with Somalia
In Ordinance No. 20 of 23 June1960, titled ‘An Ordinance to make provision for the transfer of statutory functions consequent upon the Independence of Somaliland’ (26 June 1960), in the case of statutory functions under the prison laws, the responsibility of the ‘Protectorate Governor’ in any of the laws, where henceforth, on the birth of the State of Somaliland, be taken over by the Independent State of Somaliland Minister of Interior and those of the Commissioner of Prisons by the most Senior Somaliland Prisons Officer. After union with Somalia, the existing Somaliland prison law continued to apply in the Somaliland regions in the same way that Somalia kept applying its own prison law (Ordinamento Carcerario della Somalia, Decree No. 21 of 27 March 1957) until the laws were harmonised in the 1970s. This was agreed and was set out in the respect of all laws in force in the two uniting states (in the Somaliland’s union of Somaliland and Somalia Law) and in the (Somalian version) of the Act of Union which was belatedly adopted in January 1961 which confirmed that ‘[t]he laws in force in Somaliland and Somalia at the time of the establishment of the Union shall remain in full force and effect in the respective jurisdictions subject to the provisions of the Constitution, this law or any future law’ (Art. 4).
The Somaliland Prison Service merged with the Somalia police ‘Corpo Carcerari’ (Prison Corps) and was then initially referred to as the ‘Corpo di Custodia della Reppublica’ (Somali Republic Custodial Corps) in the 1960s (see for example Decree of the President of the Republic No. 43 of 27 December 1962 relating the uniform and accoutrements of the Custodial Corps). As in many areas of law and procedures, the Somalia military type of ranks for the Somalian Police of various types (such as the Financial Guards, the tax police, the Veterinary Guards and the Prison Guards) were extended to the Somaliland Prison Service (as well as to the Somaliland Police Force). And so ended the Somaliland Prisons Service which, specially more so after the Military dictatorship became a Force whose members were subject to military laws like the Somalian Police and Prisons forces which were subject to military laws since 1950 (Ordinances No. 78, 79, and 80 of 15/11/1950) and came under the Military Justice tribunals (Law No. 10 of 20 February 1958 and the (Italian) Military Codes). The main prisons laws (applicable to Somaliland from 1971 and in the case of regulations from 1984) during the period of union with Somalia were: (a) The Prison Law 1971 (Law no. 7 of 30 December 1971) (in English) which came into force on 15 January 1972. This Law which consisted of 74 Articles grouped into 11 parts expressly repealed, in Article 73, all the provisions of the [Somaliland] 1952 Prisons Ordinance’ and of the [Somalia] 1959 Prisons Law. Although this law includes various provisions which are more in tune with Military Dictatorship that toppled the democratic Somali Republic government and institutions, many of the major provisions of the Law were (unusually) grounded on the 1952 Somaliland Prisons Ordinance. It is possible that this might have been, in part, due to the fact that the Prisons Corps were by then commanded by the former Commissioner of the Somaliland Prisons Service. (b) Regulations issued under Article 71 of the 1971 Prison Law were headed Regulations for the Countryﾒs Prisons (Presidential Decree No. 49 of 9 August 1984). Article 96 of these 1984 Regulations expressly repealed the Somaliland Prison Rules1953. (c) In 1975 the name of the Prisons Corps was changed to ‘the Corrections Corps’ (Ciidanka Asluubta, in Somali) – SRC Presidential Law No. 59 of 8 March 1975.
Republic of Somaliland Prisons Laws
In general the 1993 Somaliland Charter and the 1997 Interim Constitution, as well as the current (2001) Somaliland Constitution allowed the continuing use of pre 1991 laws until they are replaced with new laws and subject to their provisions not being contrary to the constitutionally affirmed sovereignty of Somaliland, the constitutional fundamental rights and freedoms and sharia principles (see for example Art.130(5) of the Constitution). Until the recent 2017 Somaliland Prisons Law (see below), the three main laws/regulations relating the Republic of Somaliland prisons were:
1. The Structure of the Corrections Corps Law Law No. 93/96 of 3 November 1996 (Sharciga Dhismaha Ciidanka Asluubta) set out the organisational structure of the Somaliland Corrections Corps. This Law (numbered 83/96) was passed by the House of Representatives on 14 October 1996 and was signed into Law by the President on 3 November 1996. Article 1 of the Law states that the Corrections Corps are “temporarily” part of the armed forces, but that they come under the Ministry of Justice, and Article 2(d) added that when required or are called in defence of the country, they have military powers. The Commandant and the Deputy form the high command of the Corps (Art. 3 ) and the (military) ranks of the Force members shall be in order of precedence Senior Officers, Junior Officers, Inspectors, Sub-officers, Riflemen (Dablay, in Somali or more appropriately Askari) and recruit Rifleman (Article 7). (In 2014, however, the Ranks awarded to the Corps were similar those of the Army and the Police with Generals, Colonels and Majors as senior officers; Captains, lieutenants and sub lieutenants as junior officers, Inspectors of 3 levels, Sargeants, Corporals, Askaris and recruit Askaris). Article 9 of the Law also stated that for Personnel management matters, such as promotion, pay, discipline etc, the relevant provisions in the Police Regulations shall apply. The Corps come under the Ministry of Justice (Article 1(2)),
2. The Somaliland Prison Law, Law No. 94 of 1996 consisting of 74 Articles (in Somali) is based on the the 1971 Prison Law and was passed by the House of Representatives on 14 October 1996 and signed into Law by the President on 16 November 1996. This Law has recently (with effect from January 20181) been replaced by a new Prisons Law. We have kept here, for references purposes, the provisions of the law as set out in the following table:
3. A slightly modified version of the 1984 Regulations, as applied in Somaliland, is still currently in use Somaliland prisons, but only in so far as its provisions have not been repealed by the new 2017 Somaliland Prisons Law. (Our apologies for the faint copy and the missing annexes which are essentially the same as the 1984 annexes). Overall the he Regulations are practically the same as the 1984 ones; indeed Articles 2 – 69 are worded exactly the same as the similarly numbered articles in the 1984 Regulations. The minor changes are:
- Article 1 (definitions) which inserts the relevant Somaliland institutions.
- Art 70 covers the opposite numbered article and few lines of Art. 71.
- Articles 71 to 74 of the 1984 Regulations have been deleted.
- Articles 71 to 95 of the Somaliland version are the same as Article 75 to 91 of the 1986 Regulations.
- Article 92 of the Somaliland version is essentially the same as Articles 96 and 97 of the 1984 Regulations.
- Annexes B (prisoners’ food); T (prisoners’ cloths and bedding) and X (punishment food) referred to in Articles 18(1) , 19(1) and 48 of both Regulations are the same, but are not attached to the Somaliland version posted above.
It is expected that new Regulations in line with the 2017 Prisons Law will be issued.
4. For the treatment of juvenile offenders, see the Somaliland Juvenile Justice Law - Law No. 36/2007 which repealed the 1971 Juvenile Courts and Reformatories Law - Law No. 13 of 18 March 1970. (A young prisoners’ wing was first established at Mandhera prison in 1959 and a youth reformatory was laster established at Minje Asseye, near Berbera. There are plans to re-establish such an institution)
5. The Somaliland Transfer of Prisoners Law – Law No. 53/2012 [Clearer Somali Copy ] and an [English translation] This is a generic law which applies to prisoner transfers to or from countries with which Somaliland has a prisoner transfer agreement (such as Sychelles in relation agreed cases involving prisoners convicted of acts of piracy offences).
Finally the new Somaliland Prisons Law - Law No. 65/2014(2017) (Xeerka Xabsiyada Somaliland) consisting of 94 articles grouped into 14 parts is now (as from January 2018 when it was gazetted) the main prisons law. There is no English translation of the law yet, but we have added to the above copy of the law the arrangements of the articles in both Somali and English. The Gazetted copy of the Law is available here: Xeerka Xabsiyada Somaliland.
KEY UN DOCUMENTS RELATING TO THE TREATMENT OF PRISONERS:
“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.” Article 10 International Covenant of Civil & Political Rights 1996: