Countries of the World/COUNTRYS.BIN/dp/0329/03298.txt

Text File | 1991-06-25 | 25KB | 402 lines

$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 an