Hiiraan Online

Saturday January 18, 2025
By Asha-Kin Duale



Now standing the current political instability, volatile security, widespread corruption, and lack of resource, seeking changes that unifies legal frameworks, enhances judicial independence, and increases access to justice would require immense political will power.

The current stagnant situation can be changed only by aligning our valued religious beliefs, customary laws, and the formal legal process in a gradual but consistent way. 

Among the countless changes that are needed in the Somali legal system I have selected only the 5 following areas:

• Ensuring compliance with the Constitution
• Unifying and modernizing the legal system
• Strengthening the independence of the Judiciary
• Technology and Digitalization in the legal system
• Improving the correctional institutions
  

Law Enforcement: Ensuring Compliance with the Constitution

The Constitution is a living document, it is a man-made social contract that can be and should be reviewed according to circumstances of those who are the receiving end. I contend the concept that the Constitution is the supreme law of the land: the Sharia Law is the supreme law as any article that may conflict with the Islamic tenets should be considered as void and null.

However, since the adoption of the Provisional Constitution in 2012, Somalia has grappled with complex political, security, and social challenges including fighting against hostile elements.
The current 2012 Provisional Constitution laid out the basic framework for governance while acknowledging that certain areas required further discussion and consensus. These areas include the division of powers between federal and state governments, resource allocation, and the creation of a unified legal framework

Once the constitution is reviewed and adopted, the challenge of enforcing its provisions . A strong law enforcement framework is essential to ensure that the constitution is respected by both the government and citizens. There are 2 major institutions that ensure the compliance with the Constitutions which strangely enough each and every Somali government that came into power have strongly avoiding to establish:

The Judicial Service Commission, (Art. 109A of the Constitution ) invests it with the following clear functions:
Appoint, discipline and transfer any member of the judiciary at the Federal level

1. To decide on remuneration and pensions of members of the judiciary` 
2. To decide on other work matters of the judiciary
   

The Constitutional Court (Art. 109B  and Art. 109 C) with these exclusive powers:
Hearing and deciding cases concerning challenges to the constitutionality of a law passed by the Federal Parliament 
Deciding on cases concerning matters of interpretation of the Constitution not arising out of Court litigation
Resolving any disputes between the Federal Government and the Federal Member State governments or among the Federal Member State governments

• Deciding cdisputes between organs of the Federal Government, concerning their respective constitutional powers and duties
• Deciding cases concerning the impeachment of the President. 

Unifying the Somali Legal System

Somalia’s legal landscape is characterized by a complex mix of customary law (Xeer), Islamic law (Sharia), and statutory law. This may create inconsistencies and confusion, especially considering that they are also written in 4 languages: Somali, Arabic, Italian and English. Decoding the different translations would certainly play part of such confusion.

A key reform would be to unify these systems under a coherent legal framework that integrates aspects of all three while maintaining clarity about the application of each system.

The Current Fragmented Legal Landscape

Somalia’s legal system is currently divided among three main sources: customary law (Xeer), Islamic law (Sharia), and statutory law.

Islamic Law (Sharia): As a predominantly Muslim country, Sharia plays a central role in the Somali legal system, particularly in family law, inheritance, and morality.

Customary Law (Xeer): This traditional system, deeply embedded in Somali culture, is based on clan agreements and collective responsibility. It governs many aspects of daily life, particularly in rural areas, addressing issues such as land disputes, marriage, and compensation for crimes. 
Statutory Law: The statutory legal system, inherited from Somalia’s colonial past and further shaped by the 1960 Constitution, is based on a combination of Italian civil law (in the south) and British common law (in the north). However, statutory law’s effectiveness has been undermined by decades of civil war, weak state institutions, and limited reach in rural areas. As a result, its application is often inconsistent, and many citizens rely more on Xeer and Sharia than on statutory law.

Challenges to Unifying the Somali Legal System
 
Several challenges must be addressed to achieve the goal of unifying the legal system: 
Religious Sensitivities:respecting the population’s religious beliefs, any effort to reform the legal system must conform with the Sharia law as it is not permitted any changes to the words of Allah. 

Balancing Tradition and Modernity: The challenge of integrating Xeer in a way that respects local customs without negatively impacting with the international conventions may be difficult.Customary law is deeply rooted in Somali society, particularly in rural areas where the state’s reach is limited. 

Institutional Weakness: The long years of conflict have left Somalia with weak legal and judicial institutions. A unified legal system will only be effective if the state has the capacity to enforce it. Political Resistance: Legal unification will likely face resistance from various political entities and Member state leaders who benefit from the current fragmented system. Ensuring that all stakeholders are consulted and involved in the process will be critical to overcoming political opposition.

Modernization of outdated legislations.While the challenges are significant, they are not insurmountable in undertaking the modernization of outdated legislations. An excellent example is the modernizing the Penal Code of Somalia which dates back to the 1962s and it is based  on Italian legal traditions and it does not reflect Somalia’s contemporary legal standards, human rights principles, or the social, political, and economic changes.

Modernizing the penal code will require political and a thoughtfully  balance between Somali religious and cultural believes and global legal standards. The Penal Code should include specific laws to combat terrorism, organized crime and should include provisions that address modern crimes such as cybercrime, data breaches, child exploitation, and online fraud.
Strengthening the Independence of the Judiciary
 
Somalia’s judiciary faces numerous obstacles that compromise its independence:

Political Interference: Historically, the judiciary has been subject to pressure from both the executive and legislative branches, as well as from powerful clans and political figures. Judges may face intimidation, coercion, or dismissal if they make rulings that challenge political interests. 
Corruption: Corruption is a widespread issue within Somalia’s legal system. Judicial appointments are often influenced by personal connections rather than merit or qualifications

Lack of Resources and Training: Somalia’s judiciary suffers from a severe lack of resources. Courts are often underfunded and understaffed, with judges and court personnel lacking proper training. Furthermore, the lack of standardized legal education and professional development for judges and lawyers results in inconsistencies in the application of the law.
Security Concerns: Judges, lawyers, and court officials in Somalia often face significant security risks, especially when dealing with cases involving powerful political figures, or extremist groups like Al-Shabaab. 

Pathways to Judicial Independence?

Strengthening judicial independence in Somalia requires comprehensive reforms at various levels. Some key steps include:

Constitutional Guarantees: Judicial independence is enshrined in Somalia’s constitution as per Art. 106 (1) (2) (3). The ongoing constitutional review process presents an opportunity to solidify these protections.

Strengthened oversight bodies to monitor judicial conduct and integrity by establishing the Judicial Service Commission which is competent to oversee the budgetary, appointments, promotions, and disciplinary actions of the judiciary 
Merit-Based Judicial Appointments: Judicial appointments should be based on merit, qualifications, and experience, rather than political or clan-based considerations.
 
Judicial Training and Capacity Building: of judges, lawyers, and court personnel. 

Combating Corruption: A comprehensive anti-corruption strategy must be implemented within the judiciary. 
Improving Security for Legal Professionals: Judicial independence cannot thrive in an environment of insecurity. The safety of judges, lawyers, and court officials by should be addressed as a top priority. International partnerships to bring in expertise and share knowledge with Somali legal professionals.

Technology and Digitalization in the Legal System

Introducing modern technology to the Somali legal system can increase efficiency and reduce corruption. Key reforms must include:

Digitizing court records and enhancing Electronic filing system in case management systems to improve transparency and reduce delays and bureaucracy

Partnerships with international legal bodies to receive technical assistance and capacity-building support.

Opportunity for economic cooperation: Somalia is emerging from decades of conflict, and there is a need to develop an updated commercial law system to support economic recovery and  foreign investment requiring Digital knowledge. Property rights are also a contentious issue due to land disputes and to outdated legislations. Developing  modern commercial laws and continuously reviewing them would attract investment, strengthen land tenure systems, and address land disputes through legal mechanism. 

Improving the Correctional System -  Prison Reforms

Improving correctional services in Somalia requires a combination of infrastructure improvements, capacity building, legal reforms, and a shift toward rehabilitation and reintegration rather than mere punishment. 

Here’s some approaches to improve correctional services in Somalia:

Renovating Existing Facilities & Building New Prisons including establish separate juvenile detention centers that focus on rehabilitation and education and age-appropriate services and protection

Inmate Data Management: Develop systems for tracking inmates, their offenses, length of sentences, and rehabilitation progress. This will ensure better management of prison populations and allow for monitoring of overcrowding or unjust detentions.
Expedited Legal Processes: Speed up judicial processes to prevent unnecessary prolonged detention of individuals awaiting trial, a significant contributor to overcrowding.

Educational Programs & Health Services: Implement vocational training, literacy programs, and educational opportunities within correctional facilities, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules)
Gender Sensitivity Training: Train staff on gender-sensitive practices, especially for managing female inmates, who may face specific challenges such as pregnancy, childcare, or sexual violence.

Public Reporting: Ensure transparency in the functioning of correctional services by producing regular reports on prison conditions, inmate treatment, and the outcomes of rehabilitation programs. Independent monitoring by civil society and human rights organizations should be encouraged. Whistleblower Protection: Establish mechanisms for reporting corruption or abuse within correctional services, with protections in place for whistleblowers