$Unique_ID{COW03298} $Pretitle{286} $Title{Somalia Chapter 4B. The Legal System} $Subtitle{} $Author{Jean R. Tartter} $Affiliation{HQ, Department of the Army} $Subject{court courts government law military siad constitution socialism socialist system} $Date{1981} $Log{} Country: Somalia Book: Somalia, A Country Study Author: Jean R. Tartter Affiliation: HQ, Department of the Army Date: 1981 Chapter 4B. The Legal System At the time of independence Somalia was faced with the problem of absorbing four disparate legal traditions: English law, Italian law, the sharia (Islamic law), and Somali customary law. Italian Somaliland and the British Somaliland Protectorate had their distinctive colonial judicial systems. In addition Italian Somaliland had a well-developed court system of qadis (traditional Islamic law specialists) for the settlement of civil and minor penal matters, while in British Somaliland the qadi courts were recognized as having competence to decide questions of native law and custom. Traditional courts were replaced in 1950 by subordinate courts having competence to deal with minor criminal offenses. After independence the earlier court divisions were rejected in favor of a modern, unified system. The military junta suspended the constitution when it came to power in 1969, but other sources of law were retained. Customary law was heavily modified, and a unified civil code was introduced. A major new feature of the court system was the introduction of the National Security Court to try a broad range of offenses judged to affect security and public order. Presided over by military officers, the system lacked the usual rights of appeal. The Constitution of 1979 reintroduced most of the guarantees of individual liberty that had been prominently featured in the independence constitution. In practice, however, the rights of free speech and publication and protection against arbitrary arrest were not respected, and many long-term political prisoners continued to be held without trial. Sources of Law The judicial organization and procedures introduced after independence were drawn primarily from the system of the Italian trust territory, which consisted of Italian metropolitan law and enactments of the local authorities in Italian Somaliland. Judicial decisions under the Italian system were based on the application and interpretation of a legal code. However courts were enjoined to apply English common law and doctrines of equity in matters not governed by legislation. Provisions of the sharia relating to marriage, divorce, family disputes, and wills were adjudicated during the colonial period by qadis in the northern regions. In Italian Somaliland the sharia was more widely applicable, but a Muslim plaintiff had the choice of appearing before a regional judge instead of a qadi. After independence the differences between the two regions were settled by compromise, making the sharia applicable in all civil matters if the dispute arose under that law. Customary law could also be applied in such matters as land tenure, marriage, child custody, intestate succession, and payment of dia (blood compensation-see Glossary). During the 1960s a unified penal code and a code of criminal court procedures were introduced, and a unified civil code relating to inheritance, personal contracts, and house rents was completed in 1973. Customary law was sharply curtailed by the military regime's efforts to eradicate tribalism. Clan or lineage rights over land and water resources and grazing were abolished. Payment of dia as compensation for death or injury was limited to the victim or close relatives rather than to an entire dia-paying group (see Glossary). Later, payment of dia was entirely prohibited. The Courts The 1961 constitution provided for a unified judiciary independent of the executive and legislative authorities with a Supreme Court as the highest judicial organ. By a law passed in 1962 the courts of northern and southern Somalia were integrated into a four-tiered judicial system: the Supreme Court, courts of appeal, regional courts, and district courts. All members of the Supreme Court, supplemented by four additional members, comprised the Constitutional Court, which had the power to review the constitutionality of legislative action. The full Supreme Court supplemented by six additional members, constituted the High Court of Justice, which was empowered to hear impeachment proceedings against the president or ministers of the government. No provision was made for the sharia courts in the 1962 law on the grounds that judges versed in both the sharia and civil law were better qualified to hear cases than qadis, who knew only the sharia. When the military government came to power, it abolished the Constitutional Court and High Court of Justice, neither of which had ever been formally convoked. Some jurisdictions of other courts were assumed by the National Security Court, which was outside the ordinary legal system and under the direct control of the SRC. This court, regarded as a political instrument, had competence over serious offenses affecting the security of the state including offenses against public order and tranquility and crimes by public officials and members of the government. The court heard a broad range of cases, passing sentences for embezzlement by public officials, murder, tribalism, political activities against scientific socialism, and stealing government food stocks. The court was composed of three members: an officer of the SRC, who acted as president of the body, and two other judges, generally military officers. Similar courts were also organized into regional and district sections. A special military attorney general served as prosecutor. No other court could review its sentences; appeals from its decisions could be taken only by the SRC. It was widely believed that Siad Barre determined which cases would be brought before the National Security Court and that he personally cleared sentences imposed by it. In 1974 a new law on the organization of the judiciary was promulgated, which appeared to make only minor changes in the system. Four levels of courts continued to be provided. District courts were as before divided into civil and criminal sections. Regional tribunals now had three divisions: an ordinary section dealing with penal and civil matters more serious than those allowed to be heard by the district courts; an assize section, which only considered major criminal cases (those punishable by more than ten years' imprisonment): and a labor law section. At the district and regional tribunals, cases were heard by a single magistrate assisted by two laymen, who with the judge decided questions of fact and voted on the guilt or innocence of the accused. At the next level were the regional courts of appeal, comprising two sections. The ordinary section heard appeals from decisions of the district tribunals and from the ordinary sections of the regional tribunals. The second heard only appeals from the regional assize sections. In both sections a single judge presided, assisted in the ordinary section by two laymen and in the other by four. The senior judges (or presidents) of the courts of appeal served as the administrators of the courts in their regions. At the pinnacle of the judicial system was the Supreme Court. The court was composed of a chief justice (whose title was president), a vice president, nine surrogate justices, and four laymen. In plenary sessions the court panel consisted of the president, two other judges, and four laymen. In ordinary sessions it had a presiding judge, two other judges, and two laymen. Whether the case was to be handled in plenary or ordinary session was decided by the court's president on the basis of the importance of the matter being considered. The Supreme Court was charged with uniform interpretation of the law; it heard appeals against decisions and judgments of the lower courts and against measures taken by public attorneys and settled questions of court jurisdiction. The 1979 Constitution appeared to confirm most of the existing court hierarchy, although the composition of the various courts and their functions were left for determination by specific laws. Provision was included for military courts, thereby apparently entrenching the National Security Court system in the Constitution. The Constitutional Court, composed of the Supreme Court and delegates to the People's Assembly nominated by the president of the republic, was restored to decide on the constitutionality of laws. Observance of the law and prosecution of criminal matters was made the responsibility of the state attorney general. This official was assisted by ten deputies in Mogadishu and by other deputies who served at the courts of appeal and the regional or district courts. Before the 1969 revolution the Higher Judicial Council had responsibility for the selection, promotion, and discipline of members of the judiciary. The council was chaired by the president of the Supreme Court and included justices of the court, the attorney general, and three members elected by the National Assembly. In 1970 all positions on the council were taken over by SRC members. The 1979 Constitution included provision for the Higher Judicial Council, adding amnesty matters to its jurisdiction. Its structure was not defined except to designate the president of the republic as its chairman. By making this change any pretense of the independence of the judiciary seemed to have been abandoned. Human Rights The constitution in force until the October 1969 revolution strongly protected the civil rights specified in the United Nations Declaration of Human Rights. The country's record of honoring these rights was impressive not only by the standards of developing states but even by those of developed Western democracies. They included the presumption of innocence before the courts; the right of habeas corpus; the freedoms of political association, public expression, and personal liberty and movement; and the rights to form labor unions and to strike. The ownership of all land was vested in the state (outright ownership of land conflicts with Somali traditions), but developed property and improved land could only be expropriated on the basis of equitable compensation. The revolution of 1969 brought to power a socialist-military government that attached considerably less importance to most of these rights. The right of habeas corpus was abolished in October 1970, although the presumption of innocence and free legal assistance for indigent defendants in serious cases continued to be provided. Equal rights were extended to women in several areas, including inheritance (see Social Change, ch. 2). The 1979 Constitution has restored, at least in principle, many of the civil rights extinguished by the military regime. It guarantees the freedoms of speech, religion, and publication and the right to participate in an assembly, demonstration, or organization. The inviolability of the home and the privacy of correspondence are protected. These safeguards, however, are subject to important qualifications-in the case of freedom of expression and association by the condition that exercise of these rights "shall not contravene the Constitution, the laws of the land, general morality, and public order." The United States Department of State's Human Rights Report for 1981 noted that the press is government controlled,foreign publications are subject to censorship, and freedom of assembly is severely circumscribed. The report further stated that, while the Constitution provides that the state religion is Islam, adherents of other religions are allowed to worship freely but cannot proselytize. The Constitution stipulates that anyone deprived of his personal liberty shall forthwith be informed of the offense of which he is accused, and anyone detained on security grounds must be brought before a competent judicial authority without delay. In spite of these provisions, the Amnesty International Report 1980 estimated that at least 100 people were being held on political grounds without charge or trial, among them former Prime Minister Mohamed Ibrahim Egal, detained except for a brief period ever since the overthrow of the civilian government in 1969. The Mogadishu National Security Court tried seventy-four men after the failed coup attempt of April 1978, resulting in the execution of seventeen individuals. The defendants did have access to legal representation, and close relatives could attend the trials. In spring 1980 as many as several dozen military personnel, members of the Majerteyn clan, were executed secretly for allegedly having supported the Somali Salvation Front (SSF) guerrilla movement. It could not be ascertained whether the victims had been executed without trial. Politics And Ideology The egalitarian traditions of the Somali social system under which all were free to speak out on political issues and to be equally heard were breached by the military men who came to power in 1969. Important decisions were henceforth made by the military-dominated leadership at the center, supported by the largely military structure at the regional and local levels. Political disagreements that did occur were apparently ironed out within the ranks of the SRC. Major issues concerned the speed and degree of socializing the country, the continuing intrusion of clan rivalry, foreign alignments, and Somalia's irredentist claims. The later addition of new bodies like the SRSP and the People's Assembly have produced a complex amalgam of government but have not materially affected the underlying concentration of power in the hands of Siad Barre and his closest military collaborators. The introduction of the civilian party structure might have been expected to reinvigorate the ideological spirit of the government; but it was in fact followed by reduced stridency of official rhetoric and more pragmatic policies as Siad Barre has moved closer to the West. The proclaimed socialist course of the economy has been maintained while private economic activity has been sanctioned among the peasants, nomads, and small businessmen. Insofar as policy debates have occurred in recent years, they have been permissible only within the upper reaches of the SRSP, the political arm of the military junta. But by 1981, in spite of stern deterrents to the expression of dissenting views, discouragement over the drift and loss of vitality of the Siad Barre regime had been increasingly voiced. This discontent did not appear to have crystallized into a coherent opposition element; while new dissident groups had been formed abroad, most appeared to be based on clan ties and rivalries without offering a distinctive national program. The Ideological Base On the first anniversary of the SRC coup, Siad Barre declared that Somalia was to be a "socialist state dedicated to scientific method." In subsequent speeches and pronouncements Siad Barre and other government officials elaborated on what had been designated scientific socialism, which they equated with Marxism-Leninism rather than African or other forms of socialism. Siad Barre described scientific socialism as a system in which all means of production and natural resources belong to the entire society and one that distributes the national products in accordance with contributions of each individual. Although Siad Barre associated Somalia's ideology with that of the Soviet Union and other "advanced socialist countries," he emphasized that it must be applied in accordance with the conditions found in each country. Thus in Somalia the country's poverty of natural resources dictated that growth be centered on the traditional sectors of agriculture and livestock. Distinctive features of Somali socialism were the great campaigns for a standard Somali script and mass literacy and programs of self-help and collective labor. Siad Barre also insisted that Somalia's socialism was in harmony with Muslim doctrine, which he noted is a religion of social well-being and human equality (see Siad Barre and Scientific Socialism, ch. 1). Somalia is one of several African states (including Guinea, Mozambique, Angola, and Ethiopia) that have chosen a political doctrine they have defined as scientific socialism. Political scientist Kenneth Jowitt has drawn attention to the disparity between the terminology used in these countries and their real ideological commitment and development strategies. Jowitt postulates several possible explanations for this phenomenon: that African scientific socialist regimes are designed to secure military or economic aid from communist countries, that overwhelming resource shortcomings prevent the achievement of economic aspirations along conventional Marxist lines, that the choice of an ideological format reflects the arbitrary decision of a personal dictator or ruling clique, or that some African scientific socialist states have for particular reasons formally adopted Leninist facades while retaining a non-Leninist character. Consideration of these factors helps to explain Somali adherence to scientific socialism. In spite of its heavy reliance (until late 1977) on the Soviet Union for arms, military training, and economic aid and its exposure to the influence of several thousand Soviet advisers, Siad Barre's government never relinquished the prerogative of carrying out its socialist revolution in its own chosen fashion. David Laitin, a specialist on Somalia, has found that during the military regime's first seven years, achievements in terms of traditional socialist doctrine were mixed at best. While banks, insurance companies, and leading industrial enterprises were nationalized, the process was based on pragmatism. The private retail sector was largely unaffected, and the most important export earners-livestock and bananas-remained in private hands. Self-help projects like sand dune stabilization were carried out in the name of scientific socialism, as were the determined efforts to bring about greater social equality through language reform and the moves to root out the prevailing kinship system. In its foreign relations the regime pursued a consciously socialist policy, becoming a leading voice for "progressive" causes and developing close ties with the Soviet Union, China, the Democratic People's Republic of Korea (North Korea) and the more radical Arab states like Syria, Libya, and Iraq. In Laitin's view, however, even before the break with the Soviet Union in 1977, scientific socialism was becoming more meaningless with every speech by Siad Barre. In retrospect another government confronting the same developmental problems might have acted in much the same way without claiming so assertively to be following the course of scientific socialism. Since the eviction of Soviet personnel in late 1977 and the subsequent traumas of defeat in the Ogaden war and the influx of refugees, the rhetoric of scientific socialism has become muted, and the term itself has faded from official utterances. The 1979 Constitution does not employ the expression, stating simply that the republic is a socialist state led by the working class. Foreign policy is declared to be nonaligned. The Constitution affirms that the economy, while founded on socialist state planning, is composed of a state sector ("the vanguard of economic development"), a cooperative sector, a private sector, and a mixed sector consisting of joint ownership between the Somali state and others. In an address to military officers in May 1981 Siad Barre reiterated that Somalia maintains a straightforward political policy of socialism but does not insist on the universal superiority of socialist doctrine. He noted that capitalism is practiced by major Western countries having advanced agriculture, industry, and transport infrastructures, and that economic units were owned by the people through share capital. Somalia, he pointed out, is obliged to follow a socialist path because it does not have a solid infrastructure, a wealthy population, training, experience, and basic resources. Since 1976 seemingly contradictory trends have emerged-while the fervor of socialist ideology has abated, the institutional forms of state socialism have been extended. A government-party structure has been imposed in a form resembling those of such African nations as Angola and Mozambique and more distantly related to the systems of the Soviet Union and Eastern Europe. In all these countries the national governments are based on a blurred division of responsibility between a single vanguard party and the state. Although party congresses are held only at lengthy intervals-usually five years-a central committee concerns itself with the ideological direction, and an administrative apparatus of bureaus or committees deals with day-to-day policy questions. True executive power in each country is concentrated in the political bureau, which in Somalia has consisted only of Siad Barre and four others regarded as his most loyal supporters. As in other socialist states like Angola and Guinea, a national legislature has been introduced, but it has been relegated to a position subordinate to the military oligarchy and the party. Although ostensibly holding broad powers under the new Constitution to legislate, approve budgets and development plans, ratify treaties, and elect the president, the Somali People's Assembly seems to have been accorded little more than symbolic status, meeting in brief sessions to endorse government decisions already made and to hear inspirational messages from government leaders. The constitutional referendum and assembly elections of 1979 can be explained best not as opportunities for genuine expression of opinion but as furnishing public manifestations of the legitimacy of the regime. The predictably favorable response in the voting results was heralded as an affirmation of the nation's unity and support for Siad Barre's leadership. In accordance with its socialist commitment to egalitarian economic policies, the government exercises control over wages and prices, conducts foreign trade through import and export agencies, and monopolizes large-scale economic activity through public corporations. As of 1981 the less doctrinaire attitude toward the private sector reflected in Siad Barre's public declarations-and formalized in the Constitution-had not been matched by a strong revival of private economic activity. Approximately fifty public enterprises continued to dominate the modern sector of the economy, including banks, insurance, wholesale trade, business services, exporting, and manufacturing. In 1978 it was estimated that 77 percent of gross output in manufacturing arose from publicly owned establishments. Major projects in cement, sugar, petroleum refining, and textiles in the 1974-78 development plan period and others included in 1979-81 intensified the government's preeminence in the economy. Although the government recognized the role of the private sector in small-scale manufacture and in retail trade, few tangible forms of encouragement were offered to private entrepreneurs and foreign investors. The government has not interfered with private agriculture by livestock-and crop-producing families, who constitute the largest part of the Somali population. Government pricing policies for the country's main export-livestock-have acted as an incentive to private producers in recent years. Government development policies, however, have tended to encourage large-scale irrigated state farming over individual crop raisers and small cooperatives, and some of the best rangelands have been reserved for grazing associations and cooperatives (see Crop Production, ch. 3). The Somali labor force is organized within the General Federation of Somali Trade Unions, formed by the government in 1977. Seven unions claiming a membership of 200,000 are affiliated with the federation: the Industry and Minerals Union; the Agricultural and Livestock Workers Union; the Construction and Electrical Workers Union; the Transport, Telecommunications, and Information Workers Union; the Commerce and Finance Workers Union; the Administrative and Social Affairs Workers Union; and the Local Government, Tourism, and Hotel Workers Union. The unions appear to serve chiefly as rallying points for support of the government as adjuncts to the SRSP, rather than independently representing the interests of the workers and conducting collective bargaining.