By Lawyer Mohamed Ahmed Abdi Bacaluul
The judiciary in the Republic of Somaliland stands as a cornerstone of justice and societal stability, yet it grapples with systemic legal and structural challenges that undermine its independence and effectiveness. As the supreme authority tasked with shaping national judicial policy, the Supreme Court, along with lower courts, operates within a framework defined by the Constitution and supporting legislation. However, deficiencies in these legal structures, coupled with financial and operational constraints, have hindered the judiciary’s ability to deliver justice effectively. This article explores these challenges and proposes actionable reforms to strengthen Somaliland’s judicial system.
The Supreme Court: A Question of Independence
The Supreme Court is the highest judicial body in the Republic of Somaliland, responsible for overseeing national judicial services and reviewing lower court decisions. Its constitutional mandate (Article 105) positions it as a critical institution for upholding the rule of law. However, the independence of its judges is compromised by a lack of job security. Apart from the Chief Justice, whose appointment requires parliamentary approval, other Supreme Court judges serve at the President’s discretion, leaving them vulnerable to political influence.
The court’s collective decision-making process, requiring at least three judges, further dilutes individual authority, including that of the Chief Justice. This structure renders the court susceptible to external pressures, with lobbying by political figures, traditional elders, and other influencers becoming commonplace. As a result, the Supreme Court struggles to maintain impartiality, particularly in reviewing lower court decisions.
The influx of appeals from regional courts overwhelms the Supreme Court, driven by lenient procedural laws that allow even minor cases—such as disputes over a meter of land or petty assaults—to reach the highest court. This backlog distracts from addressing significant economic, social, and security-related cases. Stricter appeal criteria and empowering regional appellate courts to finalize minor cases could alleviate this burden.
The Constitutional Court, a branch of the Supreme Court, has also failed to fulfill its role in protecting citizens’ constitutional rights, focusing instead on political disputes between government branches and parties. This stems from both the lack of judicial tenure security and undefined procedural rules for handling constitutional complaints. Similarly, the absence of a dedicated mechanism for judicial review of administrative decisions leaves citizens without recourse against unfair executive actions.
Lower Courts: Structural and Administrative Weaknesses
Lower courts, including district and regional courts of first instance and appellate courts, face similar challenges. The National Justice Committee (Article 107) oversees judicial administration but includes members from other government branches, undermining judicial autonomy. With only three judicial representatives—two of whom lack permanent tenure—the committee’s decisions are swayed by external influences, affecting judicial appointments, dismissals, and promotions.
The Judicial Administration Law (Law No. 24/2003 and 24/04/06) is outdated and ambiguous, failing to regulate internal court operations, case assignments, or record-keeping. The existence of two conflicting versions of this law creates legal confusion, further hampering effective administration. A comprehensive overhaul is needed to clarify roles, streamline case management, and ensure transparency in court processes.
Legislative Gaps: Outdated Laws and Procedural Deficiencies
The judiciary relies on outdated substantive and procedural laws, including the Penal Code, Criminal Procedure Code, Civil Code, and Civil Procedure Code. These laws do not reflect modern societal changes, technological advancements, or alignment with Islamic Sharia and the Constitution. For instance, the Penal Code lacks provisions for contemporary crimes like human trafficking, cybercrimes, and money laundering, while the Civil Code fails to protect intellectual property rights, leaving creative works vulnerable.
The Criminal Procedure Code, though well-structured, requires updates to address technology-related investigations, such as data protection protocols. A regulatory manual for investigations—covering crime scene preservation and evidence handling—would enhance accountability and improve case quality for prosecution and adjudication.
The Code of Conduct for judges and prosecutors is limited in scope, excluding Supreme Court judges and lacking clear enforcement mechanisms. Disciplinary actions are often politically influenced, and publicizing warnings undermines judicial dignity. A transparent, individualized disciplinary process, coupled with a performance evaluation system, would promote accountability while recognizing judicial contributions.
Financial Constraints: A Barrier to Justice
The judiciary’s budget, a mere 2.2% of the national budget in 2016, is grossly inadequate compared to other government branches. For example, the Ministry of Parliamentary Relations, with minimal public service impact, received more funding than all district, regional, and appellate courts combined. Similarly, obscure entities like the Degmo Heritage and Rural Life NGO were allocated more resources than court supplies nationwide.
Inadequate funding results in cramped courtrooms—often as small as two square meters—posing safety risks and limiting public access to hearings. Judges’ salaries, paid quarterly in some regions, are insufficient, forcing relocated judges to cover housing costs themselves. Despite attempts to increase salaries, inflation has eroded these gains, and no additional allowances or accommodations support judicial staff.
Recommendations for Reform
To address these challenges, the following reforms are proposed:
1. Constitutional Reforms: Amend provisions on Supreme Court judge appointments (Article 105) and restructure the National Justice Committee (Article 107) to exclude non-judicial members, ensuring independent legal expertise.
2. Legislative Cooperation: Enact a law formalizing collaboration between the Ministry of Justice and the judiciary (Article 106).
3. Prosecution Framework: Implement a General Prosecution Law (Article 103) to define the prosecution office’s structure and role in crime prevention.
4. Independent Research Unit: Establish a body to study judicial service delivery and institutional challenges.
5. Budget Autonomy: Empower the judiciary to control its budget, involving regional judges and prosecutors to reflect operational needs.
6. Salary and Benefits: Increase salaries and benefits for judges and prosecutors, aligning them with parliamentarians’ compensation.
7. Transparent Funding: Allocate timely, transparent budgets to regional and appellate courts for essential operations.
8. Court Infrastructure: Expand and equip hearing rooms to ensure public access and transparency, as mandated by the Constitution and international standards (ICCPR Articles 14, 16).
9. Retirement Law: Enact a Judicial Retirement Law with stakeholder input to protect judges’ and prosecutors’ rights.
10. Disciplinary Reforms: Formalize transparent disciplinary and performance evaluation processes, ending public warnings and incorporating merit-based recognition.
11. Appellate Court Role: Enhance appellate courts’ review processes to identify legal gaps and assess judicial performance systematically.
Conclusion
The Somaliland judiciary’s independence and effectiveness are undermined by constitutional gaps, outdated laws, political interference, and financial constraints. Thirty years after its establishment, the judiciary struggles to deliver the quality of service expected in a maturing state. Comprehensive reforms, rooted in constitutional and legislative updates, enhanced funding, and structural improvements, are essential to ensure a judiciary that upholds justice, strengthens the rule of law, and fosters public trust in Somaliland’s governance.
Originally published by the writer in Somali language on September 19, 2017.