The Evolution and Integration of Different Legal Systems in the Horn of Africa: the Case of...

Global Jurist TopicsVolume1, Issue1 2001 Article 4

The Evolution and Integration of DifferentLegal Systems in the Horn of Africa: the Case

of Somaliland

Federico Battera∗ Alessandro Campo†

∗Dept. of Political Sciences, University of Trieste, [email protected]†Legal Expert for the UN and the Italian Embassy, [email protected]

Copyright c©2001 by the authors. All rights reserved. No part of this publication may bereproduced, stored in a retrieval system, or transmitted, in any form or by any means, elec-tronic, mechanical, photocopying, recording, or otherwise, without the prior written permissionof the publisher, bepress, which has been given certain exclusive rights by the author.GlobalJurist Topics is one of Global Jurist, produced by The Berkeley Electronic Press (bepress).http://www.bepress.com/gj.

The Evolution and Integration of DifferentLegal Systems in the Horn of Africa: the Case

of Somaliland

Federico Battera and Alessandro Campo

Abstract

This paper presents an overview of the Judicial system of the Northwest region of Somalia(’Somaliland’). It investigates the historical process and the evolution of the Judiciary since itsimplementation to the present. Finally, it analyzes the current status of the Judiciary, its mainconstraints and needs

KEYWORDS: Africa, harmonization, development, judicial system

Introduction In the period 23 September to 9 October 1999, UNDOS decided to send a mission to asses all courts and judicial authorities of the main regions of the so-called Somaliland (northwestern part of Somalia), i.e. Galbeed, Awdal, Saaxil and Togdheer. The mission was headed by Alessandro Campo e Tahlil Haji Ahmed, former judge in the Somali Republic and at the present attorney at law. The present paper is mainly the product of that mission. The following mission schedule of visit shows the list and location of courts and authorities assessed:

Galbeed Region, Somaliland: - Hargeysa: Ministry of Justice, Attorney General, Supreme Court, Appeal Court, Regional Court, District Court - Gabiley: Regional and District Court (composed court), Attorney General representative office - Bally Gubadley: District Court, Attorney General representative office

Saaxil Region, Somaliland: - Berbera: Regional and District Court (composed court), Attorney General representative office - Shiikh: District Court, Attorney General representative office

Toghdeer Region, Somaliland: - Burco: Appeal, Regional and District Courts, Attorney General representative office - Oodweyne: District Court, Attorney General representative office

Awdal Region, Somaliland: - Boorama: Appeal, Regional and District Courts, Attorney General representative office - Baki: District Court, Attorney General representative office Alessandro Campo & Federico Battera the authors Nairobi 1999

1Battera and Campo: Evolution and Integration of Different Legal Systems

Produced by The Berkeley Electronic Press, 2006

The Evolution and Integration of Different Legal Systems in the Horn of Africa: the Case of Somaliland

by

Federico Battera & Alessandro Campo

1. Introduction This paper presents an overview of the Judicial system of the Northwest region of Somalia ('Somaliland'). It investigates the historical process and the evolution of the Judiciary since its implementation to the present. Finally, it analyzes the current status of the Judiciary, its main constraints and needs. The second chapter outlines the historical and juridical background. The roots of the current judicial system of Somaliland lie in its historical background. Successive juridical traditions have been stratified, so far, hindering the current system in force from having the same strength over the whole territory. Finally, the civil war and the liberation struggle drove out a large part of professionals and skills, leaving the region in a precarious situation. The third chapter is an overview of the liberation struggle and the reconciliation processes which have been held in the region since 1991. The current position of the Judiciary in the constitutional framework, in particular its autonomy, lies in the liberation from military rule as well in those processes which sparked off the constitutional process. The fourth and fifth chapters outline the current status of the Judiciary and its main constraints. These chapter are the core of this study and they are the results of a research carried out at the field level. The authors analyzed information and data from several sources gathered from the field, as well as from previous reports and studies. Due to the fact that the region is still in transition and the constitutional process has not yet been finalized, some of our sources were not homogeneous. Nevertheless, the missions on the field covered most of Northwestern Somalia save for Sool and Sanaag which could not be visited due to security reasons. The conclusions of this paper could be considered as the most advanced on the Judiciary even if it remains a preliminary work. It should be followed by further UNDOS missions to the field to assess the information collected and to begin a training program. There is a gap between theory and practice, between what is in force according to the interim Constitution and the codes and laws approved or enacted and what is concretely applied, especially in the more peripheral regions of Somaliland. This is largely due to the condition of the state-making process in the region - in particular the lack of recognition of the independence process, the continuing low although growing public confidence towards public institutions, the difficulty in exerting political control over the entire territory of Somaliland, the role played by outside actors (last, but not least, the Puntland declaration). However, other factors contribute to complicate the real situation. The most

2 Global Jurist Topics Vol. 1 [2001], No. 1, Article 4

important ones relate to the low profile of training in the Judiciary, the lack of available professionals and the lack of appropriate documentation and reference material. The latter, coupled with the different stratified traditions, generate a non-homogeneous judicial system throughout Somaliland, notwithstanding with the growing and remarkable efforts of the central government. As far as harmonizing legal sources is concerned, the sixth and seventh chapters try to defy the idea of heterogeneity as a constraint. On the contrary, legal heterogeneity is considered as a potential resource in the reconstruction and institutional development of the region. Alternative Dispute Resolutions (ADRs), based on arbitration and deeply rooted in the local culture, have to be considered prior to directly supporting the Judiciary, as a low cost instrument that meets with the confidence of ordinary people. A Legal Awareness Campaign (LAC) with the support of modern technologies is highly recommended. It will be able to make up modern standard, in particular concerning Human Rights, with local judicial tradition. Finally, the concluding chapter briefly draws on the needs of the Judiciary and the objectives of a feasible support campaign in a newly established country. Somaliland not only exemplifies the attempts of establishing State institutions after years of turmoil, but also represents a good parameter of the complex effort of enforcing a State in a self-governing society. Recommendations have been given following a critical approach, starting from the available resources on the field. Low public confidence towards public institutions is still one of the main constraints and ADRs could be seen as a good starting point. The judicial system is an important function and, thanks to UNDOS, a clear assessment of what is needed and the priorities have been appraised. 2. The Historical and Juridical Background The British administration lasted until 1960, when the former protectorate obtained independence and merged with the Italian Trusteeship Territory of Somalia. At that time, a dual system was in force due to the different colonization: the former British Somaliland followed the Common Law system, whereas the former Italian Somalia followed the Civil Law system. The former British Somaliland had a system structured on two levels of jurisdiction on Sharaitic matters and up to five levels of jurisdiction on non-Sharaitic matters (see figure 1). Hence, the system worked on a dual structure, respectively: the Qadis Courts with original Sharaitic jurisdiction and the Court of the Chief Qadi with appelate jurisdiction for Sharaitic matters, and the Subordinate Courts with original jurisdiction in minor civil and criminal matters, the District Courts with original jurisdiction in more important civil and criminal matters and, together with the Subordinate Courts of Civil Appeal, appellate jurisdiction on the Subordinate Courts for non-Sharaitic matters. Moreover, the High Court had original jurisdiction in certain civil matters and in the most serious crimes, and appellate jurisdiction in all non-Sharaitic matters. The possibility to appeal against the decisions of the High Court sitting in Hargeysa was, furthermore, extended during colonial government to the Court of Appeal for Eastern Africa in Nairobi, and, thence, to the Judicial Committee of the Privy Council (Contini, 1969: 32-4).



Figure 1 The Structure of the Judiciary in Former British Somaliland (up to 1960) Judicial Committee of the Privy Council Court of Appeal for Eastern Africa High Court District Courts Subordinate Courts Court of the Chief Qadi of Civil Appeal Subordinate Courts Qadis Courts As a matter of fact, a dual structure was also in place in the Italian Somalia but with a different shape. The three level system in force was first differentiated between Sharaitic and non-Sharaitic matters, and secondly between penal and civil matters among the non-Sharaitic ones. Therefore, the Qadis had original jurisdiction in Sharaitic matters, the Tribunal of the Qadis heard appeals from the Qadis and, finally the Sharaitic section of the Supreme Court had appelate jurisdiction over decisions of the Tribunal of Qadis. A similar framework worked for non-Sharaitic matters organized in Regional and District Courts as courts of first instance (with the second holding the minor cases) and divided in civil and criminal sections, Appeal Courts as courts of second instance and, finally the Supreme Court responsible for final appeal and review jurisdiction both in penal and civil matters. A more detailed description is illustrated in figure 2.


Figure 2 The Structure of the Judiciary in Italian Trusteeship Territory of Somalia (up to 1960)

Supreme Court

Sharaitic Section

Appeal Courts Tribunal of the Qadis

General Appelate Assize Appelate Section Section

District Regional Courts Courts Qadis

Civil Criminal General Assize Section Section Section Section

As far as the field ruled by Šari‘a law is concerned, before integration, in the North, Šari‘a law was applied by the Qadis’ Courts in matters regarding marriage, divorce, family relationship, waqf, succession and wills. In the South there was a rather complicated system whereby the Qadis had exclusive jurisdiction in matters of personal status, family law and succession, and in any other controversy between Muslims, except where the plaintiff chose to submit to the jurisdiction of the Regional Judge. The Regional Judge, who applied only Italian law, had exclusive jurisdiction over controversies supported by a written document and those where it appeared that the juridical relationship had arisen or was ruled by formalities different from those of the Islamic or customary law (Contini, 1969: 35-6). Besides its apparent complicated organization, the Italian system provided a pretext which allowed a wider application of Šari‘a law in contrast with the British system which preferred to precisely confine the scope and the field of Šari‘a. In other respects, the Italian system permitted a Muslim to opt out of Šari‘a and/or customary law in favor of the positive law. Both systems extensively relied on customary law (xeer). Xeer went beyond the official enforcement, due to the non-precise distinction between customary and Šari‘a law in certain fields (according to the shafi‘i school, prevalent in Somalia, the customary law (‘urf) is one of the sources of Islamic law) and to political circumstances. As a matter of fact, the more peripheral Qadis’ Courts were more inclined to apply customary law instead of Šari‘a law in order to keep peace in nomadic areas. The Caaqils (the recognized ‘elders’), in the British colonial system, who provided the link between the District Commissioner and the people of the district, were granted limited judicial powers and thus furnished a rudimentary alternative system in the Subordinate courts (Guadagni, 1981: 23-31). According to I. M. Lewis (1965: 105), their authority was very limited in the Judiciary, being the religious issues and matters of personal statute left to the care of Qadis, and other civil and penal issues left to the District and Regional courts, but in case of insecurity the rule of customary law undoubtedly



extended to the penal. The same held true de facto in the Italian case in the absence of any official judicial recognition of the powers of the capi-stipendiati, being the Qadi courts in charge with both, Šari‘a and customary law, as recognized by the Italian Colonial law according to the Judicial system of 1910 and 19381. Besides the structure of the Judiciary, the major differences between the two regions concerned the legal systems, with the northern one being derived primarily from the English Common and Statute Law and the Indian Penal and Criminal Procedure Codes, and the southern one mainly being derived from the Civil Law based on the Italian model. Given the remarkable differences of the legal systems and of the structure of the Judiciary, several problems emerged at the date of independence and the merge of the two regions into one country since the few qualified Somali lawyers and judges were used to different systems. The complicated Judiciary structure in force in Somaliland did not survive. The new structure was mainly borrowed from the Italian one. First, at the eve of independence, the British administration detached Somaliland from the right of appealing to the Court of Appeals for Eastern Africa and to the Privy Council, hence reducing the levels of jurisdiction from five to three. After that, shortly after independence, the unified Somali government mainly dominated by southerners resolved, as a matter of policy, to merge the two systems, deciding to reproduce the structure of the Italian system. Besides the growing opposition between the supporters of the British and those of the Italian systems, the other major issue of that time was the one confronting the so-called “traditionalists” and “modernists”. The discussion addressed the role Šari‘a would play in the independent state, as well as the survival of the Qadis’ Courts. Given the political climate of independence characterized by the dominance of the secular wing in the two major parties - SYL and SNL - which had led to independence and to the unification process, the “modernist” approach prevailed. The area of application of the Šari‘a and customary law was restricted only to civil controversies, but the law on the Judiciary (Legislative Decree No. 3 of June 12, 1962) was left vague enough with the desired intent to grant the possibility to apply the Šari‘a and customary laws to a wider extent with respect to the northern original provisions. The formulation of the law was rather the result of a compromise between the two approaches (Contini, 1969: 36-7). As far as the survival of the Qadis’ Courts was concerned, the “modernist” approach was more evident. The supporters of unification not only stressed the fact that the abolition of the Qadis’ Courts would have fostered the development of a national consciousness, but most of all that the participation of judges versed in other branches of law would have stimulated a dynamic application of the Islamic and customary law in a way more responsive to the needs of an evolving society. During the first years of independence, Somalia succeeded in its effort to integrate the four systems (common and civil, Šari‘a and customary laws) in a working whole. The problem of merging the systems was effectively resolved by several compromises: the draft of a penal code (1962) based on the Italian legal system and a criminal procedure code based on the Anglo-Indian legislation (1964), with the assistance of experts versed both in civil and Common Law. A civil code followed the coup d’etat in 1973, based on the Egyptian civil code (of the same Roman law tradition), and a civil procedure code based on the Italian one in 1974. Moreover, the commercial law remained mainly regulated by the previous Italian civil code of 1942. Islamic and customary traditions have also influenced certain legal principles. In the event of criminal cases like homicide, it saw in certain circumstances a reduction of death penalty in 1 The former entered into force with Royal decree (Regio Decreto) n. 708 of 7 July 1910; the latter entered into force with Royal decree (Regio Decreto) of 20 June 1935 (see L'Italia in Africa (ed. V. Mellana), Serie Giuridico-Amministrativa, vol.II, tomo II, Ministero AA. EE., Roma, 1972, pp. 25-7, 32-92 and 215-346).


favor of an alternative solution like a pecuniary penalty, according to the Somali tradition. Notwithstanding the marginal official role recognized by the independent State of both the Šari‘a and customary laws, de facto the competencies of Šari‘a or/and customary laws were extended to all matters in which civil and penal laws of the country were silent or wherever the parties were able to avoid ‘official’ justice. Moreover, although Qadis’ courts were abolished in favor of a unitary court system, qadis retained their post in the new courts’ system. By the time the Italian system for the Judiciary organization was recognized as the most suitable for a united Somalia, one of the major problems was how the Supreme Court, consisting of Italian judges and Somali qadis, could deal with either the law of Northern region and the English language. The problem was solved in 1961 by prescribing the presence of at least one judge versed in the former British laws dealing with the appeals against the High Court of Hargeysa. Undoubtedly, the merging of the two systems partially reduced the effectiveness of the Northwestern legal professionals during the first years, although the introduction of the criminal procedure code reduced that of Southern professionals. Once the integration of the Judiciary was accomplished, by 1964, the differences between former Italian and British Somalia were gradually reduced. Otherwise, what mostly affected the legal professionals from the North was the introduction of the Italian language. A language that the Northerners were not acquainted with compared to the Southerners, who partly spoke English because of the British administration between 1941-50. However, the judicial practice of lower courts in Somaliland continued to follow the English Common Law model. Italian and English remained the official legal languages even after the introduction of written Somali in 1973. Later, efforts were made to produce a legal Somali, but with no great results. Seven years after the unification of the Judiciary, according to Contini (1969: 43-4), a certain progress was made in the administration of justice. However, important problems remained unresolved. The positive element was that the Supreme Court seemed to efficiently master the intricacies of the coexisting legal systems. Amongst the negative elements some are striking because of analogies with the present situation of Somaliland: first the lack of trained judges, second the difficulty encountered by district judges who were more comfortable with Šari‘a or/and customary law in applying unfamiliar laws. With the abolition of Qadis’ Courts as a separate jurisdiction, most of the qadis, the majority of whom were fully educated in Arabic only, were transferred to District Courts where they were called upon to deal with non-Sharaitic matters in foreign languages. A reality close to the present situation of the Judiciary in the peripheral areas of Northwest Somalia. The prevalence of Anglo-Indian juridical tradition in the North was, therefore, reversed during the unitary governments. Later on, because of Barre’s regime, a new juridical socialist model was introduced. This deeply affected the organization of the State and the Judiciary. The introduction of the National Security Court and the enforcement of the Public Order law of 1964 abrogating the Habeas Corpus subverted the post-independance principles of the independence of the Judiciary’ and ‘equality before the law’, as they were considered incongruous with socialist rhetoric and ideology paving the way for extra-judicial powers of the regime security apparatus. Greater impact was felt with regard to personal statute and family issues, that the socialist law tried to change, affecting a previous field of Šari‘a. The enactment of the Family Act which tried to equate the personal Statute of men and women led to a wide disarray throughout the country, in particular in the Northwest and the Southern Banaadir regions, during 1975, and favored the offspring of one of the first Islamic political organizations - the Jama'at Ahl al-Islam (Ahli) - which later dissolved to form the Ittixad in 1982 (Aqli, 1993). 3. The Long Way to the Rebuilding of the State: from Burco to Hargeysa



The final effort to break from the military regime took place in 1988, following the flight of more than 300,000 refugees from Hargeysa, Burco and the surrounding areas. The military rule was definitively driven out at the beginning of 1991. The reconciliation initiatives between the different clans, which sided on different fields during the civil war in Northwest Somalia, started thereafter and culminated in the historical Burco Congress of May 1991 which declared independence. Burco represents the starting point of the State-making process in Somaliland. Other important steps toward the implementation of State institutions, apart from the reconciliation conferences (shir beeleed) throughout the region (the Sanaag Peace Building Process of 1991-93 and the Shiikh Reconciliation Conference of 1992, among the most important ones), are the constituent conferences of Booroma in 1993 and of Hargeysa in 1996-97. The outstanding key issues of the Booroma Conference (January - May 1993) were: the adoption of a political system of governance, the establishment of a new central administration as well as that of a sharing power formula among all the Northwest communities. The Booroma National Conference paved the way for a new constitutional process, whose outstanding output was a National Charter of twenty-six articles stating the independence of the Judiciary and the impartiality of judgement (Art. 22), the right to justice and the equality under the law (Art. 23). In other words, all fundamental principles neglected by the previous regime. Hence, the Booroma Charter constitutes the legal framework for further implementation of the Judiciary. In accordance with the Charter, a law concerning the organization of the judicial system was enacted in August 1993. Further provisions were also stated in the interim Constitution of 1997. The Booroma Charter stressed the role of Guurti, the Assembly of elders (a sort of Upper House), at the ‘national’ level. An issue which influences the Judiciary will be discussed further. From a political point of view, the SNM (Somali National Movement) leadership, the movement which led the liberation struggle and the region to independence, passed the Guurti its mandate powers during the Booroma Conference, as it failed to win peace after the victory against Barre’s army. From Booroma on, the Guurti became a major actor on the scene, able to co-opt all the communities and clans in the regional institutional framework. A new political system built upon Somali cultural values, elevated a tradition of locally based reconciliation process (shir beeleedyo) to the national level (Farah, 1998: 18). With the crisis of 1995 in Burco, the national scheme implemented in Booroma faced a deep crisis. Nowadays, the institutionalization of the ‘national’ Guurti, with even more extended law-making powers owing to the new interim Constitution after the Hargeysa Conference of 1996-97, seems to have lost part of the legitimization acquired in Booroma. However, local Guurtis, comprising prominent paramount chiefs or minor elders, still play an informal but important role at the local level. Since the region was liberated by Barre’s forces the elders ensured peace at the local level. This role invests the issue of justice. Until the 1993 Booroma Conference, which provided framework for a modern judicial system, local elders ensured justice. A role that endures today among the wide spaces left by a modern system, which awaits to be fully implemented. 4. The Present Structure of the Judiciary


The structure of the judicial system of present Somaliland is mainly contained in the Law on the organization of the Judiciary adopted by the National Assembly of Somalia in 1962 (Legislative Decree No. 3 of June 12), and in the most recent law on the Judiciary adopted by the Somaliland Parliament in 1993 (Law No. 41 of 11/08/1993). According to these laws, the judicial process comprises three levels: the Supreme Court, the Court of Appeal; and the Regional and District Court. The territory of Somaliland is composed of six regions2 and several districts. Each Region shall have its own District Courts, Regional Court and a Court of Appeal. The Supreme Court sits in the capital city of Hargeysa, and has jurisdiction over the whole territory. At any rate, it must be noted that District Courts are not present in all districts but only in the most important ones3, and that the courts of Gabiley and Berbera are composed courts, acting both as District and Regional Courts. Moreover, Saaxil, Sanaag and Sool regions at present do not have a Court of Appeal in their territory. Therefore, the Court of Appeal of Galbeed (located in Hargeysa) has appellate jurisdiction for Saaxil region, and the Court of Appeal of Togdheer (located in Burco) covers Sool and Sanaag regions.

2 Galbeed, Awdal, Saahil, Toghdeer, Sool and Sanaag. 3 Hargeysa, Gabiley and Baligubadle (in Galbeed), Booroma and Baki (in Awdal), Berbera and Shiikh (in Saahil), Burco and Odweeyne (in Togdheer), Ceerigaabo, Gar-Adag and Badhan (in Sanaag), Laascaanood and Caynabo (in Sool).



Figure 3 The Present Structure of the Judiciary in Somaliland Supreme Court

Court of Appeal

District Court Regional Court The Lower Courts (District and Regional Courts) District courts sit in the district headquarters, and have jurisdiction over the whole district territory. Each District Court consists of two sections, namely a Civil Section and a Criminal Section. According to 1962 law, the Criminal Section of the District Court is only competent to adjudicate relatively minor criminal charges. Indeed, the District Court has jurisdiction where, on conviction, the penal code provides a term of imprisonment not exceeding 3 years or a fine of So. Sh. 3,000 (now only about 1 USD but at the time of establishment equivalent to about UDS 500) or both. As for civil matters, the District Court exercises proper jurisdiction where the subject matter of dispute does not exceed in value of So. Sh. 3,000 (about 1 USD)4 or where the cause of action arises under Šari‘a or customary law. It must be stressed that Šari‘a law is not applied to criminal cases. Rather, it is applied to personal statute matters, i.e. family disputes, inheritance, child custody, etc. Šari‘a law is applied by a judge of the Civil Section of the District Court and not by a separate Šari‘a Court. The District Court Judge or either of the parties may apply to the President of the Court of Appeal to have any case which comes within the Civil Section transferred to the Civil Section of the Regional Court (where the judges are generally better qualified). No appeal lies against the President's decision. This provision was adopted not to encumber District Court judges with excessive complex civil cases. 4 According to the law on the judiciary, the District Court shall hear civil cases with a maximum value of So Sh. 3,000 (about 1 USD) However, such ceiling was introduced in 1962 before the runaway inflation that affected Somalia/Somaliland.


In both Criminal and Civil matters the case is heard by a judge sitting alone. The jurisdiction of the District Court is ordinarily confined to its own District. In case an accused is brought before a District Court charged with having committed an offence within the jurisdiction of another District Court, the District Court should send the accused to the District Court where the crime was committed (to be dealt with there). The District Court may take the defendant in custody or require him to give surety for his surrender to the other court. Objections as to territorial jurisdiction need to be raised in the court that is alleged not to have jurisdiction by the prosecution or the defense, as soon as the fact of such an alleged lack of jurisdiction comes to the notice of the parties concerned. The Court may, in its own motion, declare itself incompetent5. A person who is convicted and sentenced at a trial can apply to the Court of Appeal and have his appeal heard6. The date of the hearing shall be notified to the accused and brought to the notice of his counsel and the Attorney General at least 15 days before the hearing. Each region has a Regional Court that has jurisdiction over the whole territory of the particular region7. As in the case of the District Court, each Regional Court is composed of two sections, namely the General Section and the Assize or Criminal Section. The General Section is invested with both civil and criminal jurisdiction, whereas the Assize Section hears criminal cases. The General Section has jurisdiction in Criminal matters where, on conviction, the Penal Code provides for a sentence from three to ten years imprisonment. As for civil cases, the General Section has jurisdiction over all matters that fall outside the jurisdiction of the District Court, i.e. cases where the subject matter of dispute exceeds in value of So. Sh. 3,000 (about 1 USD). In the General Section, cases are heard by a Judge sitting alone. The Assize Section has jurisdiction in respect to crimes where, under the provisions of the Penal Code, the penalty on conviction is imprisonment for more than ten years, life imprisonment, or the death penalty. The Assize Section is composed by the President of the Regional Court and two lay assessors8. The role of the assessor is, together with the 5 See Article 5 of the Penal Procedure Code. Another important issue is the question of duration before trial. Unless the court has ordered the trial of the accused in accordance with the Penal Procedure Code, the accused shall be released when the period of custody has exceeded 15 days when the offence falls within the jurisdiction of the Criminal Section of the District Court, provided that the Court of Appeal, on application from the Attorney General or one of his deputies, may allow the period of custody to be increased for a further period. If the offence falls within the jurisdiction of the Regional Court and the punishment laid down by law is life imprisonment or death penalty, the accused shall be released after 90 days. Otherwise, it is 60 days. When the offence falls within the Jurisdiction of the General Section of the Regional Court, it is 45 days. 6 See Article 230 ss. of the Penal Procedure Code 7 Given the concentration of population, Galbeed Region is an exemption to this rule having two Regional Courts that sits in Hargeysa and Gabiley. 8 To qualify as an Assessor a person must have completed secondary education and be of good conduct. The question of the role of assessors in criminal proceedings gave rise to an interesting debate during the preparation of the judiciary law. Although assessors existed in both parts of the Republic, their role was quite different. In the Northern Regions, assessors were persons familiar with local customs who assisted the judge in an advisory capacity. In the South, on the other hand, the assessors were part of the Bench, like the 'popular judges' in Italy, and participated in the decision on both questions of fact and law. The advantages and disadvantages of the two systems were discussed at length. Those accustomed to the Northern system argued that while assessors might have performed a practical role in the past as native advisers to foreign judges on local customs, the gradual somalization of the judiciary greatly reduced their usefulness. Furthermore, it was said, the experience with assessors in the former Protectorate had not been satisfactory: it frequently 'happened that the assessors, being motivated by personal or clan loyalty, would recommend the acquittal of the accused, and the judge would have to disregard their advice. It was feared that if the assessors were given full judicial powers and outnumbered the professional judges, the administration of justice would suffer. Therefore, the assessors should either be abolished or



President, to adjudicate on questions of fact but not on questions of law9, and the judge alone shall impose sentences. Where necessary, both Sections of the Regional Court may sit in any area within its territorial jurisdiction. The Regional Court is responsible for the establishment of the register of companies within the court. However, no companies' registry have been set up so far.

retained only in an advisory capacity. The opposite view held that the system of assessors prevailing in the Southern Regions had been embodied in Article 95 of the Constitution, providing that 'the people shall participate directly in assize proceedings in the manner prescribed by law'. It was thus intended that the Somali Republic should continue the system of assessors which had been satisfactorily applied in the former Trust Territory since 1956. To reduce the role of the assessors was regarded as inconsistent with the Constitution and a retrograde step. In the end, an intermediate solution-was adopted. Following the Southern system, it was decided that assessors would form part of the Bench in assize proceedings dealing with the most serious crimes. On the other hand, while the law prescribed that questions of fact would be decided jointly by judges and assessors, decisions on questions of law were reserved to the judges, who were also given sole authority for sentencing. Thus, except for sitting on the Bench, in the integrated system the assessors' duties are equivalent to those of jurors in a jury trial. see P. Contini, The Somali Republic -An Experiment in Legal Integration-, 1969, p.37-38. 9 According to the Italian system, questions of law are the following: (a) lack of jurisdiction or incompetence of the lower court; (b) violation or erroneous application of legal provisions; (c) nullity of the judgement or the proceedings; (d) omissions; (e) insufficiency or contradiction in the grounds on which the judgement is based, relating to a material point raised by either party or by the court on its own motion. As for questions of facts, in the law of evidence facts are classified as follows: (a) facts in issue (principal facts or facta probanda) that are those facts that shall be proved, and (b) evidentiary facts (facta probandia) that are those facts that are submitted as evidence to prove the facts at issue. The difference between the questions of fact and questions of law is important when relating with pleadings, i.e. the written notes (the statement of claims and the statement of defense) that are exchanged by the parties, during the pre-trial, to outline the facts of the case. When the question of law is raised during a trial that involves the participation of a jury, the judge makes a decision. The question of facts, instead, is decided by the jury according to the old rule "ad questionem facti non respondent iudices; ad questionem iuris non respondent iuratores".


Figure 4 The Lower Courts System Regional Court

General Section Assize Section District Court

Civil Section Criminal Section The Court of Appeal According to the laws on the organization of the Judiciary, the Court of Appeal shall have its seat in each Regional Headquarters. However, at present, Courts of Appeal have been established only in Galbeed, Awdal and Togdheer regions. The Court of Appeal consists of the General Appellate and the Assize Appellate Sections. The former section hears the appeals against judgements of the District Court, whereas the latter hears the appeals of the Regional Court. This means that this section enjoys both civil and criminal jurisdiction. A judge sitting alone hears all its appeals. Figure 5 The Structure of the Court of Appeal Court of Appeal

General Appellate Assize Appellate Section Section



The Assize Section is composed of the President of the Court of Appeal, a judge of the Court and three lay assessors10. It is responsible for hearing appeals from the Assize Section of the Regional Court. Unlike the Regional Court, the Court of Appeal cannot hold sessions outside its seat. Both the Regional Court and the Court of Appeal are empowered to establish respective Tax Sections as provided for by the body of laws on direct taxation. However, no Tax Sections have been set up so far. The Appeal Court is also responsible for the establishment of the estates and mortgages registers within the court. However, no estates and mortgages registers have been set up so far. The Supreme Court In 1991, with the historical Booroma Conference, and the declaration of independence, the Supreme Court was established in Hargeysa, the capital city of Somaliland. The Supreme Court is composed of a President, a Vice-President and five judges11, despite the original four judges provided by the law on the organization of the Judiciary. The Court staff includes also four registrars, one bailiff and three messengers. All judges are law graduates from reputable universities such as the Universita’ Nazionale Somala (Mogadishu) or al-Azhar (Cairo), and have a proven track record in judicial matters. Furthermore, they have a good command of English, Arabic and Italian. The judicial support staff, such as registrars and bailiffs, are also qualified and have experience in judicial administration. The Supreme Court is composed of the following five Sections: 1. Civil & Labor Section; 2. Personal Statute Section; 3. Penal Section; 4. Administrative Section; and, 5. Constitutional Section. A Division Bench of 3 judges (ordinary bench) has appellate and revision jurisdiction in civil and criminal matters, as well as original jurisdiction in administrative and accounting matters. Original jurisdiction means that there is no right to appeal against the decisions of the Court on these matters12. Concerning labor matters, the Supreme Court has exclusive appellate jurisdiction. That means that the Appeal Court does not have appellate jurisdiction on labor cases. A Full Bench of 5 judges decides on petitions challenging the qualifications of deputies elected to the Parliament, controversies relating to conflicts of jurisdiction among judicial

10 Assessors in the Assize Section have the same powers and require the same qualifications as those in the Regional Court (see note 8). 11 Of which one is working on a temporary basis. 12 But the attribution to the Supreme Court of jurisdiction in administrative matters without a right to appeal was challenged as uncostitutional in the case Dr. Mohahamed Farah Siad et al. V. the Prime Minister (Supreme Court Full Bench, Judgement of December 16, 1965), See P. Contini, The Somali Republic -An Experiment in Legal Integration-, 1969, p.40.


organs, and other relevant matters considered by the president of the court to be of particular importance. The president of the court hears only the most important cases. According to the interim Constitution at Art. 131, he is also the chairman of the Higher Judicial Council (HJC), which is the authority that guarantees the independence of the members of the Judiciary. According to the 199313 law on the Judiciary and the interim Constitution at Art. 126, the Supreme Court has jurisdiction over constitutional matters. This is a new important function for the Court. Indeed, if a law, or provision having force of law, is declared unconstitutional, it ceases to be in force on the day when the judgement declaring its unconstitutionality is published14. However, due to the fact that a Constitutional Court has never been established in Somalia, the judges of the Supreme Court are not confident in constitutional matters and no cases have been heard so far15. The Supreme Court case load between 1993 and 1999 is attached in the annexes (see Annex 2).

13 Law No .41 of 11/08/1993. 14 A constitutional question may be raised in the course of any judicial proceeding by a party, the Attorney General, or the court on its own motion. If the court seized with the proceeding finds that the petition challenging the constitutionality of a legislative measure is not manifestly unfounded, judgement is suspended and the matter is referred to the Constitutional Court. 15 Articles 98-103 of the Constitution of Somalia envisaged the creation of a Constitutional Court to review the constitutionality of laws, and a High Court of Justice with jurisdiction in criminal proceedings against the President of the Republic, the Prime Minister and the other Ministers. To implement these articles, the law on the organization of the Judiciary contains an annex providing for the establishment of the Constitutional Court (comprising the judges of the Supreme Court and four additional members), and the High Court of Justice (comprising the judges of the Supreme Court and six additional members). Of the additional members of the Constitutional Court two were to be appointed by the President of the Republic, and two elected by the National Assembly. The additional members of the High Court of Justice were to be drawn by lot from a list of twelve citizens elected by the National Assembly from among persons not members of the Assembly. In 1969, Contini writes that, besides the Constitutional provisions, no additional member has been chosen, and therefore neither the Constitutional Court nor the High Court of Justice has yet been established. Since there have been no cases of impeachment, the delay in establishing the High Court of Justice has not caused any practical problems. On the other hand, the failure to set up the Constitutional Court has given rise to an awkward situation. The constitutionality of certain provisions of law was challenged in three cases before the Supreme Court. In Somali National Congress vs. the State (Supreme Court Full Bench, Judgement of November 5, 1963) and Ahmed Muddei Hussen and others vs. The Minister of Interior (Supreme Court Full Bench, Judgement of March 7, 1964) the Court held that, in the absence of an actually functioning Constitutional Court, the Supreme Court was automatically competent to decide a constitutional question 'subject to the condition that its judgement will have only a limited effect, and not a general one as would be the case if the judgements were of the Supreme Court constituted as the Constitutional Court'. However, in Dr. Mohamed Farah Siad et al vs. the Prime Minister (Supreme Court Full Bench, Judgement of December 16, 1965) the Supreme Court, under the new Presidency of Dr. Aldo Peronaci, reversed its previous decisions and held that under the Constitution and the law on the organization of the Judiciary the Constitutional Court had been given exclusive jurisdiction on constitutional matters, thus 'implicitly sanctioning the incompetence of the Supreme Court in this respect'. Accordingly, the Supreme Court declared itself incompetent with respect to the constitutional questions raised in this case and referred them to the Constitutional Court. See P. Contini, op. cit., 1969, pp. 41-42.



The Attorney General Office The 1993 law on the Judiciary regulates the Attorney General functions. According to the National Charter of Booroma (Art. 18), it should be an Independent Agency, appointed by the Government, as the Supreme Court, with the ratification of the Parliament. In accordance with the law (Arts. 9-11), the Attorney General has, among the main duties, either directly or through his deputies or representatives (police officers, inspectors or agents), the authority to: (a) direct the police in investigations and suppressing crimes; (b) institute and/or intervene in criminal and civil proceedings; (c) prefer appeals in civil and criminal matters, and; (d) supervise the penitentiary system.

According to the laws on the Judiciary, the Attorney General and his deputies are considered part of the judicial system, a concept alien to the Common Law System. The status and functions of the Attorney General are more similar to those of the "Pubblico Ministero" in Italy. The Attorney General, indeed, is responsible for ensuring the respect for the law and to protect the rights of the State and incapacitated persons. Police officers investigate crimes under the authority of the Attorney General's office. The Office of the Attorney General has its seat in Hargeisa, and the Attorney General's deputies and representatives operate in the Regions and Districts of Somaliland. The Office comprises the Attorney General, 4 Deputies Attorney General, 16 Attorney General's Assistants and 13 Registrars. Of the Attorney General's Office only the Attorney General has a law degree (he was the former Chairman of the Supreme Court), the others are all former police officers with experience in criminal cases only. The Higher Judicial Council According to the 1993 Charter of Booroma (Art. 24) and the interim Constitution of 1997 (Arts. 131-132) the Higher Judicial Council (HJC) is the authority responsible for safeguarding the independence of the members of the Judiciary. The HJC is responsible, with its binding recommendations, for the appointments, transfers, promotions and separation of members of the Judiciary. The HJC sits in Hargeysa, and is composed of the President of the Supreme Court, the Attorney General, the members of the Supreme Court (councilors), and three members elected by the Parliament. At present, the Higher Judicial Council appears to be a matter of dispute between the Government and the House of Representatives. According to the interim Constitution at Art. 131, the Chairman of the Supreme Court has a mandate to chair the HJC. However, it has recently happened that the President of Somaliland deprived, by decree (dated April 1999), the President of the Court of his title of head of the HJC, appointing him Attorney General and designating the then Minister of Justice as HJC Chairman. All these measures have been declared void by the House of Representatives, in accordance with the interim Constitution16, but final settlement awards decision of the national Guurti, which seems more prone to Presidency.

16 According to the interim Constitution, the President of Somaliland is responsible for appointing the President of the Supreme Court (but not for his/her dismissal, this being an exclusive power of the Parliament). Such an appointment needs to be approved within a period of one month by the Parliament. If the Parliament does not endorse the newly appointed President of the Supreme Court, it can dismiss him/her but only a posteriori. This may involve instability at the head of one of the most important institutions of the State, because in the period between the appointment and the parliamentary ratification, the president of the Court enjoys full powers. Given the importance of the office, introducing a parliamentary ratification a priori - i.e. before the President of the Court assumes his duties - is highly recommended.


All these are growing signals of conflict between the House of Representatives (or at least of a part of it) and the Presidency. Recently, the House of Representatives declared void the Public Security Law enacted by the Government, disbanding the so-called Security Council, which for a short time held extra-judicial powers. Hence, the Judiciary has been kept in the middle of the battlefield of the two, although its autonomy seems not to be questioned since the level of contention remains low. Both the Executive and the House of Representatives have recently drafted a series of amendments concerning the structure of the Judiciary and the Higher Judicial Council17. 5. The Results of the Regional Survey on the Judiciary During September/October 1999, UNDOS conducted a survey on the Judiciary at the regional level. Almost all Somaliland regions were surveyed with the exception of the Eastern ones (Sool and Sanaag) given the feeble sovereignty the central government is presently able to achieve. Indeed, since the declaration of birth of Puntland State of Somalia during July 1998, in what was Northeast Somalia, Sool and Sanaag have been caught in the middle of a double assertion of sovereignty and their present administrations have been split in two. Hence, this paper is the result of the information gathered directly from the field as well as the indirect information collected from other sources (local newspapers, summary reports, interviews, etc.). The list of per court case loads is attached in the annexes (see Annex 2). The level of effectiveness of the Judiciary throughout the territory is far from being completely achieved. Some regions have recorded the establishment of the courts system since the collapse of the former regime, for others the Booroma declaration or the Hargeysa Constitutional Conference have been the opportunity to push the setting up of the Judiciary. In other cases, the presence of the courts system do not imply that it is currently working with the same modalities of other regions: in certain cases the local role of the judiciary is restricted to the civil cases or is retained by people only as a second measure in case of failure of customary arbitration, even in criminal matters. Finally, although the material condition of the system is widely recognized as poor, the courts recorded different performances, depending on the level of experience and the background of judges. Generally speaking, the more peripheral areas seem to suffer the worst conditions.

17 Since 1993, the HJC has been the object of two laws (the last being that of 1996).



The Courts of Galbeed Region In addition to the Supreme Court, there are five courts in the region of Galbeed. They are as follows: 1) Appeal Court (Hargeysa); 2) Regional Court (Hargeysa); 3) District Court (Hargeysa); 4) Regional and District Court (composite court) (Gabiley) 5) District Court (Bally Gubadley) Two recently established nomadic districts, Faraweyne and Sallaxley, still wait for the establishment of the court system. The Appeal Court of Hargeysa The Court of Appeal of Hargeysa was established in 1991. It is composed of a President, two judges, three senior registrars and one registrar. The Court is supported by three assessors when hearing cases in the Assize Appellate Section. All judges are law graduates from reputable universities such as the Università Nazionale Somala (Mogadishu) or the Leningrad State University (former USSR), and have a proven track record in judicial matters. Furthermore, they have a good command of English, Italian and Arabic. The registrars are also qualified and have experience in judicial administration. The Court has jurisdiction over the whole territory of Galbeed Region, and the territory of Saaxil Region, which at the present does not posses an Appeal Court. The estates and mortgage register has not yet been established within the Court of Appeal. It must be noted that, in case of disputes concerning estates, the Municipality of Hargeysa is entrusted with jurisdiction over the territory of the whole district. The Supreme Court has appellate jurisdiction against the verdict of the Municipality. This extraordinary involvement of the Municipality in the administration of justice is the result of the peculiar status of Hargeysa after the civil war. The majority of the buildings of the city, indeed, have been destroyed, and only city planners have the instruments and knowledge to identify the owners of the plots and buildings. Similar provisions were adopted for other important municipalities, like Booroma and Berbera, but at the moment no data is available. The Regional Court of Hargeysa The Regional Court of Hargeysa was established on 1 July 1991, and is composed of the President, three judges, five registrars, two bailiffs and one messenger. All judges are law graduates from reputable universities such as the Università Nazionale Somala (Mogadishu) or the International University of Africa (Khartoum)18, and have a proven track record in judicial matters. The judicial staff is qualified and has practice in judicial administration.

18 The Khartoum al-Merkaz al-Islami al-Ifriqi was established in the ‘70s by the Numeiyri’s regime under the growing islamist influence in the campus in order to spread the da'wa (the Islamic appeal) in Africa. Several Somali students were recorded since the ‘70s (Decraene, 1977: 147).


In reality, in the Galbeed Region there are two Regional Courts: besides the Regional Court of Hargeysa, Gabiley is the venue of another regional court. Therefore, the former has jurisdiction only over the districts of Hargeysa and Bally Gubadley, and in theory pending the establishment of the court system in Faraweyne and Sallaxley districts, also. The latter has jurisdiction over the district of Gabiley. Hence, the court of Gabiley is a composite court, acting both as district and regional Court. The District Courts of Galbeed Region The Court of Hargeysa was established in 1992, and is composed by the president, two judges, one senior registrar, two registrars and one messenger. The president posseses a law degree. The other two magistrates posses a primary education and work experience on Šari‘a matters only. The Regional and District Court of Gabiley was also established in 1992, and is a composite court. This is due to the fact that Gabiley is a densely populated district. The court is composed of the president, one judge, one senior register and one messenger. When sitting in Assize Section, the court is supported by an additional judge assigned by the Appeal Court and two assessors. None of the magistrates of the court possesses a law degree. However, the president of the court has a long and remarkable practice as judge. The court is one of the few courts in Somaliland to have all the necessary legal textbooks. The District Court of Bally Gubadley, given the recent founding of the district, was established only on 10 October 1996, and is composed of the president and one register, only. The president is not law graduate, but possesses a good track record in Šari‘a law. In 1989, during the civil war, he was appointed as judge by the SNM. The registrar is not qualified and needs training courses in judicial administration. The president of the court has a remarkable collection of Šari‘a textbooks. Given the peripheral position of the district and the mainly nomadic character of the inhabitants, the majority of disputes are settled by elders out of the court by applying customary law (xeer). Therefore, the court hears minor civil and criminal cases when the parties do not agree on the out of court settlements. The Courts System in Saaxil Region In the region of Saaxil there are two courts: 1) District and Regional Court (Berbera) (composite court); 2) District Court (Shiikh); The Regional and District Courts of Berbera was established in 1992, and is a composite court. This means that the court acts both as a Regional and District Court as in Gabiley. In Saaxil region there is no Court of Appeal, and the Appeal Court of Galbeed in Hargeysa has appellate jurisdiction over Saaxil territory. Besides, Saaxil is a recent establishment as it was divided between Galbeed (Berbera) and Togdheer (Shiikh). The Court is composed of the president, one judge, a senior registrar and a registrar. The president possesses a law degree from the Universita’ Nazionale Somala (Mogadishu) and has experience in judicial matters. The other judge and court staff need training and refresher courses. Given the strategic position and role that Berbera is supposed to play for the development of the country and its economic potentiality the latter is a very delicate issue. Certainly, Berbera is the door of Somaliland and the Ethiopian region 5 on the outside world.



The District Court of Shiikh was established in 1999 only, and consists of the president and one registrar. The president is not a law graduate, but possesses knowledge and work experience in Šari‘a and the civil law system. The Court declared that in 1999 they heard only civil cases. The judge extended the civil competence of the court from Sl Shs 3,000 (about 1 USD) to Sl Shs 300,000 (about 100 USD)19. This practical expedient allowed the court to hear at least civil cases, as criminal disputes are solved by elders (customs) or are dealt with by the Regional Court of Berbera or the Appeal Court of Hargeysa. The case load is not available because the registrar did not compile the register (because of the lack of funds to buy a new one!). The poor condition of peripheral courts is not uncommon throughout Somaliland and represents the major hindrance to the full achievement of common conditions in all the territory. The Courts System of Togdheer Region In the region of Togdheer there are four courts: 1) Appeal Court (Burco); 2) Regional Court (Burco); 3) District Court (Burco/Yerowe); 4) District Court (Oodeyne) The Pattern of Togdheer Courts One of the main reasons for the efficiency of the Courts of Togdheer Region is the charismatic leadership of the president of the Appeal Court. It is with his efforts, and the important contribution of the local authorities, that the court buildings have been restored. The court's fees are not allocated to the Ministry of Finance's regional office as elsewhere, but are used to cover the needs of the courts. This simple and revolutionary expedient, also if not recognized by the central government, allowed the courts to function and to fulfill their basic duties20. So far, the Court's fees have been used for the following purposes: a) rehabilitating of courts building b) allowance to the judicial staff; c) payment of public defenders and assessors fees; d) stationery, registers, files and office facilities.

19 According to the law on the judiciary, the District Court shall hear civil cases with a maximum value of So Sh. 3,000. However, such ceiling was introduced in 1962 before the runaway inflation that affected Somalia (and Somaliland). 20 According to the President of the Appeal Court, courts' fees in Sool and Sanaag Regions are also used directly by the court authorities.


The Appeal Court of Burco The Court was established in 1996, only, given the previous unstable conditions of security in the region, and is composed of the president, two registrars and one messenger. The magistrate is supported by two assessors when the court sits in Assize Appellate Section. Contrary to Hargeysa and Booroma municipalities, the Appeal Court of Burco is also responsible for the estates and mortgages register. In theory, the Court of Appeal has appellate jurisdiction over the territory of Sanaag and Sool Regions. This means that Sool and Sanaag do not possess a Court of Appeal but only district and regional courts. Unfortunately, there were no available materials to assess the number of cases coming from the lower courts of Sool and Sanaag heard by the Appeal Court of Burco, which would have assessed the indisputable status of Somaliland sovereignty over those regions. Differently, the Puntland Ministry of Justice declared that Sool and Sanaag posses their own appeal courts (respectively in Laascaanood and Badhan). As a matter of fact, this declaration was intended to sustain the Puntland assertion of sovereignty and challenge Somaliland’s one over the contested regions. The Lower Courts of Togdheer The Regional Court of Togdheer was established in 1991, and is composed by the president, one judge, two registrars and one bailiff. None of the magistrates are graduates. However, they have work experience in civil and Šari‘a law. Elders play a fundamental role in settling disputes out-of-court, while the most unreconciliable disputes, but not necessarily the most serious one, are heard by the court21. The Register of the Companies is temporarily undertaken by the Attorney General Office instead of the Regional Court. In 1991 and during the 1995 crisis, Burco was completely devastated by the civil war. The residents moved to the neighboring village of Yerowe and established a District and Regional Court. The Court of Yerowe was a composite court, i.e. acting as both District and Regional Court. Nowadays, the Court of Yerowe is a district court only acting as the District Court of Burco with jurisdiction over Burco district too. The District Court is composed by the president, two judges (one for Burco District, and one for Yerowe District), three registrars and one messenger. The president possesses a secondary education degree from Lafoole Institute (a branch of Università Nazionale Somala; UNS) and work experience in civil and Šari‘a matters. And, one of the other two judges possess a University degree from Gahayr University (another branch of UNS). The District Court of Oodeyne was established in 1991, and is composed of the president, one registrar and one bailiff. As in other peripheral and nomadic districts, the majority of disputes are settled out-of-court, by elders, by applying custom (xeer). Therefore, the court competence concerns minor civil and criminal cases. The Courts System of Awdal Region In the region of Awdal there are the following four courts: 21 Elders explain the most unreconciliable crimes as those arisen inside the same diya-paying group. In those cases xeer could not be able to easily find an out of court settlement and the blood composition is often rejected by the family of the victim. Most of the death sentences pronounced by the official courts regards such homicide cases. The culprit is, hence, not allowed to be freed in accordance with the Somali tradition (Battera, 1999).



1) Appeal Court (Booroma); 2) Regional Court (Booroma); 3) District Court (Booroma); 4) District Court (Baki). The Appeal Court of Booroma was established in 1996, and is composed of the president, one registrar (which works with the Regional Court) and one bailiff. The president is not a law graduate, but possesses a military education and work experience as a military judge. The Regional Court was established in 1993, and is composed of the president, one senior registrar and two bailiffs/messengers. The president has a law degree from UNS (Mogadishu) and has work experience in judicial matters. Also, the judicial support staff appear to be qualified and with significant work experience. The District Court of Booroma was established in 1993, and is composed of the president, one senior registrar, one registrar and one messenger. The president is not a law graduate but is a sheekh with a Šari‘a background. He has work experience in the civil law system. As shown in the annexed case load the court is responsible for a huge work in civil matters; on the contrary, only minor and few criminal cases were heard since 1996. As ascertained in a further UNDOS mission (Battera, 1999), the role of elders, especially in criminal matters, is very important. In fact, a well established and respected xeer is efficiently performing the duties that ordinary courts held in more central and/or other urban oriented regions. Since the start of collapse of the Somali state the local Guurti, composed by 41 prominent elders and headed by the Ugaas (the Gadabuursi paramount chief), succeeded in establishing a good and peaceful environment throughout the region. Finally, in 1997 the District Court of Baki was established, composed of the president, one judge, one registrar and one messenger. Neither of the magistrates are law graduates, but both have experience in Šari‘a law. The court does not have legal textbook or registers, files and office material. Given the recent establishment of the court there is an overlapping between the role and functions of the District Judge and the Assistant Attorney General. This situation led to a poor performance of the court: the registrar did not record the cases. Consequently, no statistics are available. However, elders play a fundamental role in settling disputes in a friendly manner, and the court is responsible only for minor crimes in setting. The remaining peripheral and nomadic districts - Lughaya and Seylac - still lack any official courts system22. Most of the cases are heard by elders according to the customary law. Oddly, in the case of Seylac, being the most prominent elders residing in Djibouti or in Ethiopia, the cases are heard by ‘non-residents’. In such cases, traditional jurisdiction does not recognize and sometimes collides with the assumption of exclusive territorial State sovereignty. 6. The Role of Šari‘a and Alternative Dispute Resolutions (ADRs) in the Current Transitional Context and Their Relation with the Ordinary Judiciary

22According to the Minister of Justice, the government established the district court of Seylac after the mission completed its duties in September 1999.


Among the main objectives of the constitutional process started in Booroma in 1993 there was the establishment of a modern judicial system. The country endured a long war against the former regime and was almost totally destroyed, with a large part of the population, probably the most educated, outside the country. Therefore, in Booroma, a new independent Judiciary was set up. According to the Charter, Šari‘a became the basis of all laws (Art. 3.1 of the National Charter) in accordance with a common contemporary trend in the Islamic world and to mark a separation from the former socialist regime. Xeer (the customary law) has not been given official recognition in the Charter contrary to the following Puntland Charter, but is out of doubt that all the process which led to Booroma was mainly endorsed by elders through ADRs and by the settlement of all disputes between clans in the last year of the liberation struggle. Since 1993, the ordinary judicial system has made significant progress, given the starting condition. The country decided to apply the legislation enacted before the 60s prior to the military coup d’etat of 1969. All the following legislation was declared void23. The present structure of the Judiciary is, hence, shaped on the first Republic system. Besides, the Charter states Šari‘a is the basis of all laws. Nevertheless, the role that Šari‘a officially plays in the current situation is limited to personal statute cases. According to the objectives of the State, the Judiciary shall be fully implemented with the establishment of district and regional courts in all the districts and regions. This is not the actual present situation, but since 1993 progresses have been made. Almost all the minor courts surveyed existed before 1993 and others were established thereafter - Bally Gubadley and Yerowe (1996), Baki (1997), Shiikh (1999) - but only few of them have recorded their cases before 1997 as the District and Regional Court of Hargeysa. This could be interpreted not simply as a serious but normal deficiency in an underdeveloped country, but even as the paradigm of the underutilization of the official judiciary system until the Hargeysa conference of 1996/97 which undoubtedly strengthened the central government. This hypothesis is sustained by the belated enforcement (1996) of all the Appeal courts (Burco suffered a civil war in 1994/95), apart from Hargeysa (1991). Finally, several other districts in the regions surveyed are still non-covered by the Judiciary, in part because of their recent establishment - i.e. Faraweeyne and Salhley in Galbeed - in part because of their peripheral position - i.e. Lughaya and Seylac in Awdal. Sool and Sanaag still shared a peripheral position. According to the information gathered by the Ministry of Justice and the Supreme Court, 8 judges operated in the minor courts of Sanaag and 5 in Sool (see Annex 1), but the data do not deliver any information about the relation between those courts and the rest of the system, i.e. the number of cases that proceed to Togdheer Appeal Court after being heard in Sool or Sannag. As we know, those regions suffered from a double recognition of sovereignty that affect their position towards Hargeysa, but it is out of doubt that the relation with the Puntland judicial system is even more loose, given the recent establishment of the Judiciary in Northeast Somalia24. The gradual implementation of minor courts all around Northwestern Somalia will mark and strengthen the presence of the State throughout the territory and the demand of the central government to be closer to ordinary people in peripheral areas, who up to now had no other opportunity other than that of relying on the Alternative Dispute Resolutions (ADRs).

23Similarly, with the declaration of independence in 1993 Eritrea decided to recognize temporary the Ethiopian codes enacted by the monarchic government before the revolution of 1974 (Tekle’, 1998: 183). 24 In Puntland, the court system has been officially implemented in September 1998 after the declaration of Garoowe of 1998. Previously, all the judicial system was mainly borne by the qadis or by the elders.



In fact, the lack of official peripheral courts (district courts) gives room to an unofficial administration of justice. As K. Menkhaus (1997: 48) points out for the Awdal region in 1997, one of the most provided with judges (6 divided between the Appeal and Regional Court in Booroma, and 2 district courts, being Lughaya and Seylac not working), “the role of the district court judge is overshadowed by the elders, who mediate or arbitrate most local disputes, sending the results of their deliberation to the district court for recording” (Menkhaus, 1997: 48). According to him, in the case of Awdal the district judge holds mainly a notarial role. This has been confirmed by the more recent UNDOS survey (Campo & Tahlil, 1999: 29) and the subsequent follow-up (Battera, 1999). According to it, because of the current strength of elders and custom (xeer) in the resolution of disputes and of the low level of crime, the courts of Awdal region play a secondary role in the administration of justice. The majority of disputes are settled by elders out of court by applying custom (xeer), whereas the official courts are responsible for settling minor civil and criminal cases. The official judiciary system apply only in a second time and only if the parties (the family of the plaintiff and the defendant) do not agree on the elders resolution. In Awdal and Sanaag regions (Battera, 1999), most of the major criminal cases like homicide have been judged in the past according to customary law and outside the official court system. According to it, and if the family of the victim agree on the blood compensation (diya), the homicide is free. Only few and irreconcilable cases have implied the application of the death sentence, according to the Penal code and Šari‘a law. Moreover, according to UNDOS’ survey (Campo & Tahlil, 1999), in 1998, the district judge of Booroma (there is no data for Baki, yet) heard 541 cases (of which 90% were civil cases). That means an average of 10 cases per week: clearly an excessive number of cases for one judge only. The condition of Booroma District Court is shared by the Berbera Regional Court (7.2 cases per week and per judge) and the Togdheer Appeal Court (6.3 cases). Apart from Hargeysa and Burco district courts (both have 3 judges), the number of judges is hardly enough, considering the growing need of the official Judiciary. According to our sources only few cases have been submitted to the Appeal court from Sanaag and Sool, regions where the condition of the Judiciary is highly deficient. Finally, the number of criminal cases heard by minor courts is very low in Togdheer and Awdal regions (1 every 1059 inhabitants and 1 every 1494, respectively) if compared with those heard in more central regions like Galbeed and Saaxil (1 every 414 inhabitants and 1 every 200, respectively). This is enough to assume that in peripheral regions part of the justice is administered by local guurtis (guddida turxaanbi; Farah & Lewis, 1997: 358), particularly at the buffer-zones, which means that a large number of cases are resolved according to xeer or Šari‘a. As we have already seen, the official religion of Somaliland is Islam and “any law or decree that is contrary to Islamic law shall be consider null and void” (Art. 3.2). This statement does not imply that Šari‘a should be applied without limitation as in Saudi Arabia, rather it represents a recognition of the ongoing regional process of re-Islamization with the subtle aim of repudiating its extreme aspects. Nevertheless, given the strong religious feelings in certain parts of Somaliland (like in Booroma) Šari‘a law could advance in the next few years. According to Gambaro, Sacco (1996) and Guadagni (1995: 348), Šari‘a, in Somalia as elsewhere, suffers the competition of customary law and modern European law, nevertheless, it proves to be sufficiently flexible to adapt itself to new conditions. We have already discussed the relations between Šari‘a and customary law: there is a grey zone of overlap between the two. According to conditions, one of the two may prevail. In the case of diya, for instance, the same concept acquires different meanings according to Šari‘a (it is mainly a penal punishment) or the customary law (the proper term of diya is mag and it


is a civil damage). Hence, different conditions may produce different outputs in the same social context. Officially, Šari‘a plays only a role restricted to the personal statute as during the former unitary Republic of Somalia. Actually, its role extends to the penal whenever and wherever the official judicial system lacks or is not working and elders’ out of court resolutions in accordance with the customary law do not provide efficiently and/or are rejected by the family of the victim. At this level, Šari‘a law suffers the competition of xeer (customary law), even if the border between the two is not always clearly defined25. Notwithstanding, the condition of insecurity inherited by civil war, especially in the eastern areas, if endured, could favor a discontinuous erosion of the xeer by Šari‘a. To dissuade armed militias from seizing the herds of opposing groups, local elders have in certain cases decreed the responsibility of damages to be paid by the immediate family of the offender, rather than by the diya-paying group. In addition, the introduction of capital punishment amidst their own clan appears to have gained currency as an effective instrument to curtail homicide, especially in Togdheer and Sanaag (Farah & Lewis, 1997: 368 and Battera, 1999). In other words, there is a general trend towards a prevailing of Šari‘a despite the persistence of maintaining clan as the basic-unit of law exertion to avoid revenge by others agnatic groups. Only, a growing security will reduce the room of Šari‘a, increasing the role of the “official” courts and leaving to xeer and the elders the character that was envisaged by the 1993 Charter (at Art. 10) related to all the issues concerning peace and stability between clans. 7. The Background of Judges: a Critical Issue Three main factors have been considered: the age of the judges, their previous experiences as judges and/or registrars and their academic background. Other questions were submitted in order to verify and to enlarge the data concerning their knowledge and experiences, like the known languages and the applied laws (civil and/or penal codes and/or Šari‘a law). The submitted questionnaire was filled by all the judges and by part of the registrars upon their request. Registrars, indeed, are one of the key factors of an efficient Judiciary, providing its functionality and continuity. They are in charge of recording trial statements, magistrate orders and transactions; of receiving of court fees and, finally; they participate in the trials in order to ensure its validity. In other words they are the engine of the system. In a developing country, age and previous experiences are likely to be more consistent factors. In a society which endorse elders with a wide respect, age has certainly an important influence, but given the existence of a parallel out of court settlement system carried on by titled elders, respect must be sustained by a greater experience of judges in official law. The combination of the two factors are consistent with the need to ensure the respect and confidence of common people in ordinary law. Nevertheless, a good academic background is the main factor ensuring the judicial system with continuity in the application of official legal codes, as well as the system’s ability to meet with the challenges and changes of the modern world. In other words, the academic background of judges can secure the survival of the system and its capacity to renew itself.

25For instance, the elders prefer to explain the Somali blood compensation practice (mag) as a performance conform to Šari‘a more than a pre-Islamic practice. In case the parties do not agree on the compensation the death penalty is applied according to Šari‘a.



Most of the upper courts (the Supreme and the appeal courts) judges of Somaliland are law graduates (10 out of 12); apart from Awdal and Togdheer appeal courts. On the contrary, most of the lower courts (regional and district courts) judges are not graduates, apart from Galbeed judges. Junior judges (under 40 years old) are concentrated mainly in the lower courts (9 out of 24) rather than in the upper courts (0 out of 12). Moreover, young graduate judges are mainly concentrated in the regional courts than in the district courts of which only one judge is a graduate out of 14. Finally, most of the district courts judges are senior (over 39 years old) judges (12 out of 14), with no degree, but a certain previous experience as registrars or qadis. In fact, most of them apply Šari‘a law. Particularly in their case, experience and/or age is highly appreciated in order to win the confidence of ordinary people more than law academic knowledge. On the contrary, younger judges, as those of the Regional and District Court of Galbeed and regional courts of Awdal and Saaxil, have little experiences. However, they possess a law degree, apart from a young non-graduate judge of Awdal. In the cases of Galbeed, Saaxil and Awdal, the key regions of Somaliland, we may assume that the State expects to invest most of its human resources in the near future. In this perspective, young judges of the lower courts might play a pivotal role. Most of the graduate judges (9 out of 14) who filled the questionnaire form are graduates from the Somali National University (Università Nazionale Somala - UNS), whose programs were shaped on the Italian model. Many of them have a good knowledge of Italian. Obviously, law programs of the UNS were based on the Civil law system. Judges or lawyers were, in fact, supposed to operate in the country which definitely adopted Civil law with the merge. Of course, comparative law was part of the training, but common law was only a secondary subject. None of the present Somaliland judges graduated in a common law country apart from two judges from the lower courts of Galbeed who graduated from the Khartoum International University of Africa (IUA) in the early ‘90s. They are young, scarcely experienced and supposed to apply Šari‘a (and Civil law) instead of Common law. Indeed, the programs of IUA definitely shifted to Šari‘a since the second part of the ‘80s given the growing influence of Islamists in the Sudanese campus. The UNS academic program started in the ‘70s, but the Department of Law existed before the constitution of the national university and went back to 1959 when it was set up with the support of the Italian government in order to train the future Somali political class. The Department of Law maintained a reputable status until the first part of the ‘80s: in the second part of the 80s, its programs were highly affected by the priority given to the scientific departments and by the general crisis of the Somali State. The quality of the trained students who graduated in the second part of the ‘80s is, therefore, supposed to be of a lesser value. Three out of 9 UNS who graduated obtained their degrees before the second part of the ‘80s. All of them are members of the Supreme Court or part of the Galbeed Appeal Court. These two courts, hence, ranked the most senior judges for experience, academic background and age. Two of the most prominent judges of the Supreme Court are also graduates in Šari‘a law from the Cairo al-Azhar university, which is the most distinguished center of Islamic studies. Finally, one of the Galbeed Appeal Court graduated from the Leningrad State University of Law in the ‘60s, when the first cooperation program with the former USSR started. The present room of common law is, therefore, highly reduced in Somaliland: indeed, only some of the lawyers of the country graduated from Commonwealth countries. This highly affects the nationalistic outlook of some of the Somaliland intellectuals who support a return to the common law tradition and wish to sever any legal ties with former Somalia. This hypothesis could be extended, to a certain extent, to the role Šari‘a law will play in the near future in Somaliland. At present, most of the district court judges are not graduates and only have a scanty level of sharaitic background; most of them are aged and some have a good experience as qadis, but certainly limited in scope. Given the


official position of the State in Somaliland, as far as Šari‘a law is concerned, the role of Šari‘a is not expected to grow in scope and aims in the near future. The same goes for other Somali regions: only 8 out of the 21 judges interviewed by a recent UNDOS mission in Puntland (Campo & Tahlil 1999b) are graduates; the remnants are not graduates and have only an Islamic studies background, equivalent to secondary school level. In such conditions, Šari‘a law is expected to play a transitory role only if not heavily sustained by Arab countries. However, also in this respect, Somaliland seems to have taken an explicit direction favoring the delimitation of the Šari‘a to the personal statute. The lack of sharaitic training is also apparent in the needs expressed by the Somaliland judges in charge with personal statute cases. Indeed, most of their requests regard sharaitic textbooks. Notwithstanding with its seven-year existence, the Somaliland Judiciary is still in transition (as far as Puntland is concerned, the Judiciary has moved its first steps only with the Garoowe Constitutional conference of 1998), given the flee of skilled personnel abroad. Training of the Judiciary is, therefore, highly appreciated and requested. A worthy program, internationally sustained, might start from the existing resources: lack of academic background but a substantial work experience in a complex and difficult environment. Future training programs should also solve the problem of the circulation of models. Yemen, Egypt, Emirates, Sudan, Ethiopia and Kenya as major sources of imitation could lead to an overlapping of models. Moreover, Somaliland despite its effort to gain international recognition, might not sever its links with the remaining parts of Somalia. On the contrary, the advanced conditions of the Judiciary without any international support so far could be a useful model for the remaining Somalia. In other words, Somaliland is not alone in its effort to development. Accordingly, any training program should consider harmonization of the juridical models as one of the main objectives of the institutional development of the entire Horn of Africa/Red Sea region towards a more advanced common legal and institutional environment. Popular training in Human Rights should be also one of the targets of future training programs and, possibly, a Legal Awareness Campaign (LAC) with the support of modern technologies. It will increase reliability and public confidence on institutions, law and democratic process and it will enforce State sovereignty. The use of modern technologies and devices (TV and radio programs, documentaries, dramas, etc.) as well as traditional ones (poems, songs, etc.), which have already proved to be useful to bring to an end the previous conflict, might be a workable support. 8. The Development of the Judiciary in a Newly Established Country and the Deceptive Problem of Different Legal Traditions. Needs and Chances: a Critical Approach Since the Booroma Conference, the number of District Courts established in the area surveyed has increased (from 5 to 9). Almost every present district has a court (but the districts are increasing too). However, the total number of judges has increased at a lower rate. The average of the judges is around one and half per district, but 6 district courts out of 9 rely only on one judge. Finally, only few cases are heard by large part of those district courts, but this is certainly not the case of Hargeysa or Berbera, the capital city and the major port of the region.



However, although the Judiciary is still in transition, there is a growing trend in the number of criminal cases heard by minor courts in a period of growing political stability and peaceful conditions, despite the Sool and Sanaag claim by Puntland. This can be interpreted as a sign of growing trust in the ordinary Judiciary and the government and a more asserted sovereignty throughout the country26. Nevertheless, the Judiciary in Somaliland is far from being fully accomplished and is still in process. The scarcity of judges, the concentration of cases in few courts only, the peripheral position of some regions - namely Sool and Sanaag - and the lack of legal sources of the judges hinder the full effectiveness of the “official” system. The main questions are: is an “official” judicial system really needed? If so, which standard of efficiency is needed? Which kind of legal sources should the judge rely on? It is a fact that Somaliland has reached a peaceful condition. A working Parliament is contrasting the Government on issues of power and law, as in modern democracies. Civil institutions have been implemented, even if they are functioning only in the western part of the region (from Burco to Booroma). Hence, a large part of the region still relies on local Guurtis for peace and justice. A judicial system is needed not to replace or reverse the working conditions of stability at the local level, but to enlarge the dimension of peace and justice throughout the region. Common standards mean the chance for everyone to rely on the same kind of justice without arbitrary acts and certainty of judgement. The law must be reliable and trustworthy. The efficiency of the system should be parameterized according to the level of development and the traditions of the region. Therefore, a minimum of working and trained judges is required in order to meet the need of an equal access to justice. At present, the level of salaries attracts only low level professionals. Resources are poor, especially in the most remote areas where the Judiciary relies mainly on untrained staff. A condition common to the whole country (both the northern and southern part) at the time of independence. A good transitory expedient, in the current situation of absence of international support, has been the solution adopted by the court system in Togdheer, Saaxil and, likely, in Sool and Sanaag: to fund the system through the court’s fees which should be allocated to the Ministry of Finance. This expedient should be expanded and adopted all over the territory in order to cover at least the basic needs of judges. Moreover, the international support should promote the recruitment and/or the training of qualified young judges, especially focusing on the strategic areas for the future development of the country (mainly Saaxil and Galbeed). Heterogeneity of available legal sources is another relevant issue. At the moment, lowest court judges only rely on what they have or on what they know. The UNDOS survey (Campo & Tahlil, 1999) ascertained a better level of experience than academic background of the judges. Nevertheless, equal standards and homogeneity of legal material are strongly needed. This does not mean that different legal traditions could be the major cause of inefficiency. Plurality does not necessarily mean lack of a reliable judgement. In the case of Somaliland, the debate often centres on to the issue of conflict between Romanistic and Anglo-Indian legal traditions. A nationalistic attitude looks at the Anglo- 26Sovereignty over Sool and Sannag regions remains a delicate issue in the relation between Somaliland and Puntland but above all a reason of embarrassment in the relation between the two entities and the international organizations (IOs). Indeed, a survey on the Judiciary of the two regions was impossible to carry out due to the lack of precise of sovereignty. At last, the issue of sovereignty is a secondary problem for local communities represented both in the parliaments of Hargeysa and Garoowe: few cases from Sool and Sanaag are supposed to be heard in the Appeal court of Burco and/or in the supreme courts of Hargeysa or Garoowe and the major criminal cases are judged according to customary law (Battera, 1999, and Alwi, 1999: 3).


Indian tradition as another opportunity to cut away from the rest of Somalia and to be linked to the Commonwealth. The common point of these complaints are that Somaliland held its own legal tradition and that it worked de facto until 1977, when the conditions of the country worsened to the point that it lost all legal requisites. This is true only in part. In Somaliland, Common Law remained one of the major sources initially supported but subsequently replaced by Civil Law. Moreover, if a large part of qualified and experienced Somaliland lawyers remaining today are versed in Common Law as well as Civil Law, Somaliland judges -especially at the lowest level - are more likely versed in Civil Law (or Šari‘a) which has prevailed more recently. The civil war that upset Somalia has left the region in a worrying condition of lack of legal material, especially on the side of Common Law. Finally, contemporary Somaliland law recognizes the system in force in the First Republic, whose main model was Civil Law. Common and Civil Law placed side by side do not necessarily imply a conflict between the two. Conflicts arise when there is no exact distinction of what is enforced and when (Guadagni, 1996: 24). This is not the case of present Somaliland, despite the large resort to ADRs. Furthermore, with the growing process of globalization, an harmonization of national codes (especially commercial codes) throughout Africa, is highly needed: a trend which overcomes the problem of different legal traditions (Guadagni, 1996: 54). The issue of different legal traditions between Northwest Somalia and the former Italian Somalia is, hence, most likely improper (Mattei, 1998: 39-41). Both regions, despite their political differences should progress on a common direction, along with the neighboring countries (mainly Kenya, Ethiopia, Yemen and Emirates). In perspective, skill in both systems is not, necessarily, a handicap despite the need of harmonization. Indeed, one of the main needs is that of inserting Somaliland in the regional framework. Despite the precarious conditions of living, commerce and market are booming and the region shows optimistic profiles for the near future, however, the lack of legal skills makes the region vulnerable on the international market. Therefore, training in commercial law is one of the most needed priorities. Another matter of concern is the gap between the background required for judges in a modern judicial system and the law effectively applied in the region. Unfortunately, every legal training program has extreme difficulties to deal with this issue. On the contrary, Clan's law tends to fill the gap between theory and reality (Battera, 1999). Clan's law has showed to be a working reality not only in marginal areas but even at the 'national' level every time there has been a deep confrontation between the political factions. This is the reason why both the Booroma Charter and later the Hargeysa interim Constitution endorsed the 'national' Guurti with high recognition and powers. In Puntland, the local Charter openly recognizes at article 25.4 ''alternative dispute resolution” (ADRs) as a way to enforce justice and peace. In a transitional period like the current one, xeer might be more openly sustained. Somaliland enjoys the previous acknowledgement of local xeer as a source of law, during colonial time (Farah & Lewis, 1997: 369-70). Training program might include the importance of traditional values. Xeer might find a place in future legal developments in the region without colliding with Western legal traditions. Not differently, minor courts’ judges are probably more versed in Šari‘a law than any other legal system (and this is even more true for Puntland judges). As far as this point is concerned, given the flight of professionals from the region and the few returns, for these people, amongst the basic requirements the knowledge of Šari‘a and xeer seem to be more useful or practicable.



The fact that the eastern part of the region shows the lowest development of the Judiciary in Somaliland (only four judges in Sool's District Courts, two of them in Isaaq's district of Caynabo) confirms the assumption that the issue of exclusive sovereignty, as one of the axiom required by the State in order to be internationally recognized, is sometimes questioned by clans. This certainly is the endless problem of decentralization that underdeveloped countries have to cope with but in the case of former Somalia also elucidates that xeer or other customary law might find a place in future legal developments without colliding with the State. Somalia contemporary history reveals that the State is not able to centralize all development issues. Either the State decentralizes the power, or the periphery gains autonomy by itself.


Selected Bibliography Aqli, A. Historical Development of Islamic Movements in the Horn of Africa, unpubl. paper,

First Conference of The European Association of Somali Studies, University of London: SOAS, 23-25 Sept.1993

Alwi, M. An Assessment Mission Report: Sool Region. Nairobi: UNDOS, 1999 (draft paper) Battera, F. An Assessment of Out-of-Court Settlements in Northwestern Somalia, Nairobi: UNDOS, 1999 (draft paper)

Campo, A. & Tahlil, A. H. Assessment of the Judiciary System of Somaliland. Nairobi: UNDOS, 1999a (draft paper) Campo, A. & Tahlil, A. H. Assessment of the Judiciary System of Puntland. Nairobi: UNDOS, 1999b (draft paper) Cerulli, E. Il diritto consuetudinario della Somalia Italiana Settentrionale: Sultanato dei Migiurtini, in L'Africa Italiana, a. XXXVII, f. III, 1918, pp.120-37; f.V, pp. 216-33; a. XXXVIII f.I, 1919, pp. 45-56; IV, 177-95; V, 231-47; VI, 276-86 Contini, P. The Somali Republic: An Experiment in Legal Integration. London: F. Cass & Co.,

1969

Decraene, P. L'exprience socialiste somalienne. Paris: Berger-Levrault, 1977.

Farah, A. Y. Political Actors in Somalia’s Emerging De Facto Entities: Civil and Military

Relations in Somaliland and Northeast Somalia, Nairobi: War-Torn Societies Project, Somali Program, 1998.

Farah, A. Y. & Lewis, I. M. Making Peace in Somaliland, in Cahiers d’Etudes africaines, 146, XXXVII-2, 1997, pp. 349-77

Gambaro, A. & Sacco, R. Sistemi Giuridici Comparati, Torino: UTET, 1996 Grande, E. Transplanting Alternative Dispute Resolution in the Horn of Africa: some Issues of

Law and Power, in L. Favali, E. Grande, M. Guadagni (eds). New Law for New States. Politica del Diritto in Eritrea. Torino: L'Harmattan Italia, 1998, pp. 109-22

Guadagni, M. Xeerka Beeraha. Diritto fondiario somalo. Milano: Giuffre’, 1981. _ Il diritto dei singoli paesi. Somalia, in R. Sacco. Il diritto africano. Torino: UTET,

1995, pp. 347-51

_ .Il modello pluralista.Torino:Giappichelli, 1996. Jensen, H. The Criminal Justice System. Nairobi: UNOSOM - Justice Division, 1994. Kassahun, Y. The Courts: Problems, Prospects and Role in Somalia's Emerging Regions.

Nairobi: EU - Somalia Unit, 1997

Lewis, I. M. The Modern History of Somaliland: From Nation to State. London: Weidenfield & Nicolson, 1965

Mattei, U. Legal Pluralism, Legal Change and Economic Development, in L. Favali, E. Grande, M. Guadagni (eds). New Law for New States. Politica del Diritto in Eritrea. Torino: L'Harmattan Italia, 1998, pp. 23-50

Menkhaus, K. Studies on Governance (2). Awdal region, Nairobi: UNDOS, 1997 Santiapichi, LL. Prezzo del sangue e l'omicidio nel diritto somalo, Milano: Giuffre’, 1963.



Tekle’, T. Prime Osservazioni sul Sistema Giudiziario Eritreo: la Fase della Transizione, in L. Favali, E. Grande, M. Guadagni (eds). New Law for New States. Politica del Diritto in Eritrea. Torino: L’Harmattan Italia, 1998, pp.183-92


ANNEX 1

Number and Distribution of Judges in the Regions Surveyed (Somaliland) (*) LOCATION SUPREME

COURT APPEAL COURT

REGIONAL COURT

DISTRICT COURT

GALBEED Hargeysa 7 (7) 3 (3) 4 (4) 3 (1) Gebiley** 1 1 Bally Gubadley

1

Faraweyne / Sallaxley / AWDAL Boorama 1 2 (1) 1 Baki 2 Lughaya / Saylac / SAAXIL Berbera(**) 1 (1) 1 Shiikh 1 TOGDHEER Burco 1 2 3 Oodweyne 1 Buuhoodle (***)

/

SANAAG Ceerigaabo / 2 2 Ceel Afweyn

1

Gar-Adag 1 Laas Qoray (***)

/

Badhan (***) 1 Dhahar (***) 1 SOOL (***) Laas Caanood

/ 1 1

Taleex / Xudun 1 Caynabo 2 (*) The number in branches shows the number of judges graduated in law. (**) Berbera and Gabiley are composite courts, i.e. they act both as Regional and District Courts. In Saaxil region there is no Court of Appeal. It is the Appeal Court of Galbeed that has appellate jurisdiction over the territory of Saaxil region. (***) Those districts and regions are currently under the claim of Puntland (see Charter for the State of Puntland, art. 1.2). The number of judges has been given by the Somaliland Ministry of Justice and has not been confirmed by the UNDOS mission. The Puntland Ministry of Justice gave a different figure: 3 judges per court, in the Appeal Court of Sanaag (Badhan), in the Appeal Court of Sool (Laas Caanood), in the Court of First Instance of Sanaag (Badhan), Sool (Laas Caanood) and Southern Togdheer (Buuhoodle).



ANNEX 2

Case Load The Supreme Court The following are the statistics of cases heard by the Supreme Court in the period 1993 to 1999. The cases concern Civil, Personal Statute, Criminal and Administrative matters. A. Civil Cases B. Personal Statute Cases Year Settled Pending Total Year Settled Pending Total 1993 23 2 25 1993 3 0 3 1994 32 6 38 1994 8 0 8 1995 33 5 38 1995 5 1 6 1996 40 7 47 1996 4 0 4 1997 80 8 88 1997 7 0 7 1998 93 0 93 1998 9 0 9 1999* 56 30 86 1999* 2 1 3 Total 357 58 415 Total 38 2 40 * from January to September 1999. C. Criminal Cases D. Administrative Cases Year Settled Pending Total 1993 4 0 4 1994 5 0 5 1995 8 0 8 1996 9 0 9 Year Settled Pending Total 1997 14 0 14 1997 10 0 10 1998 22 0 22 1998 20 0 20 Total 60 0 60 1999* 11 7 18 Total 41 7 48 * from January to September 1999. The Appeal Court of Hargeysa The following statistic of cases heard by the Appeal Court records the period 1997 to 1999. The cases concern Civil, Personal Statute and Criminal matters. A. Civil & Personal Statute Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1997 123 21 144 1997 81 6 87 1998 133 33 166 1998 100 13 113 1999* 55 41 96 1999* 39 15 54 Total 311 95 406 Total 220 34 254 * from January to September 1999.


The Regional Court of Hargeysa The following are the statistics on cases heard by the Regional Court in the period 1991 to 1999. The cases concern Civil and Criminal matters. A. Civil Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1991 489 85 574 1991 280 62 342 1992 145 21 166 1992 90 29 119 1993 179 85 264 1993 350 49 399 1994 180 84 264 1994 129 139 268 1995 57 40 97 1995 370 70 440 1996 63 74 137 1996 294 296 590 1997 121 83 204 1997 442 308 750 1998 174 60 234 1998 462 292 754 1999* 83 30 113 1999* 315 186 501 Total 1491 562 2053 Total 2732 1431 4163 * from January to September 1999. The District Court of Hargeysa The following are statistics on cases heard by the District Court in the period 1992 to 1999. The cases concern civil, personal Statute and criminal matters. The court is also responsible for recording marriages, divorces, and notary matters. A. Civil & Personal Statute Cases27 B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1992 380 200 580 1992 130 50 180 1993 460 240 700 1993 80 40 120 1994 500 110 616 1994 100 40 140 1995 600 144 744 1995 173 4 177 1996 700 143 843 1996 200 54 254 1997 580 200 780 1997 217 60 277 1998 398 205 503 1998 250 75 325 1999* 110 106 216 1999* 140 21 161 Total 3728 1348 4982 Total 1290 344 1634 * from January to September 1999.

27 The registrar did not make any distinction among civil, personal statue and labor cases.



C. Other operations Year Notary Marriage Divorce Total 1991 160 50 60 270 1992 300 70 150 520 1993 200 250 76 526 1994 300 300 200 800 1995 150 150 250 550 1996 260 270 116 646 1997 310 187 310 807 1998 310 189 287 786 1999* 120 50 50 220 Total 2110 1516 1499 5125 *from January to September 1999.

District and Regional Court of Gabiley The following are the statistics on cases heard by the Regional Court in the period 1996 to 199928. The statistic of cases concern civil and criminal matters. A. Civil, Labor & Personal statute Cases29 B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1996 130 25 155 1996 60 12 72 1997 205 57 262 1997 90 6 96 1998 200 27 227 1998 100 16 116 1999* 80 19 99 1999* 105 15 120 Total 615 128 743 Total 355 49 404 *from January to September 1999. The District Court of Bally Gubadley The statistics on case concern civil, personal Statute and minor criminal cases. A. Civil & Personal Statute Cases* Year Settled Pending Total 1999* 47 0 47 Total 47 0 47 * from January to September 1999. B. Criminal Cases Year Settled Pending Dismissed Total 1997 8 - 11 191998 18 8 24 551999* 19 2 - 21Total 45 10 55 95* from January to September 1999.

28 It was not possible to gather the list of cases before 1996, because the previous registrar was not competent and did not record the cases properly. 29 The registrar did not make any distinctions among civil, personal statue and labor cases.


The Regional and District Courts of Berbera The following are the statistics on case heard by the Court in the period 1998 to 1999. The cases concern civil, personal Statute and criminal matters. A. District Court A.1. Civil & Personal Statute Cases Year Settled Pending Total 1998 54 - 54 1999* 25 5 30 Total 79 5 84 * from January to September 1999. B. Regional Court B.1 Civil Cases B.2 Criminal Cases Year Settled Pending Total Year Settled Pending Total 1998 97 - 97 1998 275 4 279 1999* 56 12 68 Total 275 4 279 Total 153 12 165 * from January to September 1999. The Appeal Court of Burco The following is the statistic of cases heard by the Appeal Court in the period 1998 to 1999. The cases concern civil, personal statute and criminal matters. A. Civil & Personal Statute Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1998 147 75 222 1998 180 28 188 1999* 24 2 26 1999* 28 3 31 Total 171 77 248 Total 208 31 219 * from January to September 99. The Regional Court of Burco The following are the statistics on cases heard by the Regional Court in 1997. The cases concern Civil, Personal Statute and Criminal matters. A. Civil & Personal Statute Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1997 30 14 44 1997 109 45 154 Total 30 14 44 Total 109 45 154



The District Court of Burco/Yerowe The following are the statistics of case heard by the District Court of Burco/Yerowe in the period from 1997 to 1998. The cases concern civil, personal statute and criminal matters. The District Court of Burco declared to hear civil cases with a value up to 3 million Sl Sh30. A. Civil Cases B. Personal Statute Year Settled Pending Total Year Marriage Divorce Total 1997 112 54 166 1997 7 5 12 1998 70 30 100 1998 10 9 19 Total 182 84 266 Total 17 14 31 C. Criminal Cases Year Settled Pending Total 1997 50 20 70 1998 135 20 175 Total 185 40 245 The District Court (of Oodeyne) The following is the statistic of cases heard by the District Court in the period 1997 to 1999. The cases concern Civil, Personal Statute and Criminal matters. A. Civil Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1997 35 4 39 1997 11 0 11 1998 29 4 33 1998 11 0 11 1999* 13 0 13 1999* 3 0 3 Total 77 8 85 Total 25 0 25 *from January to September 99 The Appeal Court (of Booroma) The following are the statistics of case heard by the Appeal Court in the period 1997 to 1999. The cases concern civil and criminal matters. A. Civil B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1997 8 0 8 1997 57 0 57 1998 22 0 22 1998 58 1 59 1999* 3 0 3 1999* 12 0 12 Total 33 0 33 Total 127 1 128 *from January to September 99

30 For comments see note 21.


The Regional Court of Booroma The following are the statistics on case heard by the Regional Court in the period 1997 to 1999. The cases concern civil, personal Statute and criminal matters. A. Civil & Personal Statute Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1997 16 0 16 1997 136 0 136 1998 20 0 20 1998 97 11 108 1999* 3 0 3 1999* 64 9 73 Total 39 0 39 Total 297 20 317 *from January to September 99 The District Court of Booroma The following are the statistics on case heard by the District Court in the period 1996/97 to 1999. The cases concern civil, personal Statute and criminal matters. A. Civil & Personal Statute Cases B. Criminal Cases Year Settled Pending Total Year Settled Pending Total 1996 27 3 30 1997 483 0 483 1997 58 3 61 1998 470 20 490 1998 51 0 51 1999* 412 0 412 1999* 47 6 53 Total 1365 20 1385 Total 183 12 195 *from January to July 99



The Evolution and Integration of Different Legal Systems in the Horn of Africa: the Case of...

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