by Asha-Kin F. Duale
Sunday, December 31, 2017
Injustice in all its forms endangers countries’ development and compromises people’s security. The absence of fair administration of justice effectively forces communities to provide for their own security and justice. When crimes occur or disputes arise, this often results in significant interpersonal and inter-communal conflict.
Governments that have ruled over Somalia post civil war never had it as top priority the legality of the judiciary system as per its legislation, its implementation and enforcement. No one paid attention that lack of justice dispensation has caused and it is still causing the perpetuation of social inequality, hence the need for clan-based politics that would ultimately cause further upheaval and social unrest.
At this juncture of Somali history, we are witnessing a toxic combination of a flawed judicial system, weak law enforcement system, untrained judiciary members, not to mention punitive rather rehab oriented custodial system that have propped up a culture of impunity and hopelessness.
The codified legislation and the judicial institutions of Somalia have structural weaknesses and the current government with all its capability or political will is unable to address the magnitude of such problem alone. The solution would lie with lobbying within committed well -wisher donors for a substantial support equivalent to that of national security for the rescue of the collapsed judiciary system, the law enforcement and the custodial forces. We shouldn’t shy away from engaging just like in 1960’s foreign legal expatriates as Judges, advisors and trainers to law enforcement and custodial forces, to be gradually replaced by Somali nationals.
The absolute must in reforming the current state of affairs includes establishing an independent judiciary from the executive and legislative bodies, setting up an independent policing oversight authority and creating a correctional and rehabilitation system.
Somali legislations include among others the Shari’ah law, constitutional, customary, international, civil, criminal and administrative laws not to mention the federal laws yet to be understood and developed. Such legislations originate from the Islamic jurisprudence or they are inherited from the colonial powers of Italy and UK.
In this article I will confine myself only on the field of criminal law as I cannot possible encompass the complexity of other fields:
a) Firstly, members of the judiciary, the police, the Attorney Generals’ Office and more recently the Supreme Court Judge complained about the lack of resources (including staff, vehicles, phones and forensic experts) to uphold the rule of law or resolve crimes. When the judiciary members are free from the pressures of ‘fear’ and ‘want’ they will comply with the both the Islamic principles and fundamental requirements under international law of being competent, independent, and impartial. Although we are all aware of the situation on the ground, we expect that a judiciary member who fears for his life or unable to provide for his family to reach an impartial decision.
b) When there is accountability of the judiciary members including the law enforcement personnel are all subject to an agreed performance management process. Therefore, a transparent annual report electronically accessible is a must as well as the revival of the over sighting Higher Commission for Justice.
c) The currently used Somali Penal Code is based on the Italian Napoleonic Code (written in Italian) while the Procedural Penal Code is of British common law background. This itself reflects 2 different jurisdictions, thus the civil and the common law with inevitable structural and conceptual clashes. There are also relevant amendments introduced by the past military regime, which imposed special rules and regulations for the National Security Court. These were related to the crimes against the state and the role and powers of the Public Prosecutor which now days is called Attorney General as per the commonwealth countries. Above issues would call for thorough review of both statutes coupled with the prerequisite of updating the whole Penal Code and its Procedural Code for the 21st century judicial system.
d) The codified laws of Somalia are written into 4 languages: Somali, Arabic, Italian and English causing a huge divergence in the interpretation the law of the land. Any translation in Somali language will require developing first a technically agreed legal terminology workbook.
d) Currently, the only Court that can issue a death penalty is the Military Court. In August 2011, following intensive fighting in Mogadishu and the withdrawal of Al-Shabaab from the city’s centre, the then-President Sheikh Sharif Sheikh Ahmed of the former Transitional Federal Government (TFG), declared a state of emergency in areas of Mogadishu recently vacated by Al-Shabaab. The emergency decree granted the military court jurisdiction over all crimes committed in areas under the state of emergency—giving the military court jurisdiction over civilians by default.
Although the state of emergency expired after three months, the military court since then has continued to try a range of defendants beyond that envisioned under the Code of Military Criminal Procedure.
There is a huge confusion of legal instruments used by Court. The Art. 2 (3) of Provisional Constitution legislates ‘no law can be enacted that is not compliant with the general principles and objectives of Shari’ah’ hence, death sentence are based of both the ‘qasaas’ principle of Shari’ah and the provision of Penal Code.
In the case of homicide, under the Shari’ah it should be treated as a civil and not a criminal matter and the ultimate power on whether to execute or pardon the killer lies with the family of the wrongfully killed person. When negotiations are reached and "Diya" or blood compensation is paid to the victim’s family, the killer can walk free.
On the contrary, the existing State’s Penal Code legislates murder as a criminal matter and if the Court decrees for the killer’s execution no third part, (family) interference is permissible. A review of the Military Court’s powers and the legal provisions used is badly needed
e) My last recommendation is that the destructive formula of power sharing of 4:5 shouldn’t be applied in a fair judiciary system as well as tribal politics because the rule of law should be supreme.
Needless to state that democracy will prevail only when the three State powers have equal status and supremacy in their own domain without suppression of one over the others.
That said; there is a slight progress with the current government’s initiative of exposing some of the rotten parts in our judicial system and televising the outcome. A TV programme focusing on the outcome of the government’s Fact Finding Commission (available on YouTube) showed inmates being released after the Commission find out that they were detained beyond their jail terms and for small amount of money. ($30 for more than 5 years jail).
In the TV programme, Advocate Tahlil sincerely pleaded all those serving judges who have been appointed not in conformity with law of the land to relinquish immediately their position, as they may be liable of legal remedy in regards to their Court decisions.
I welcome this initiative and I urge the government to continue it as it will support building public trust into the judiciary system, it would be also a critical tool to correct shortfalls and it will have the effect of empowering ordinary citizens of their own rights.
Asha-Kin F. Duale
Human Rights Lawyer