Part One: The Judicial Branch

Article 97:
  • 1. The state[180] shall have a judicial branch whose function is to adjudicate on proceedings between the Government and the public and between the various members of the public.
  • 2. The Judicial Branch shall fulfil it duties in accordance with the Constitution, and shall be independent of the other branches of the state.
Article 98:
  • 1. The Judiciary shall have the power to:
    • a) interpret, in accordance with the Constitution, the laws passed by the Constitutional bodies and emergency laws;
    • b) adjudicate on disputes between the governmental bodies and the public and between the members of the public;
    • c) adjudicate on all disputes which relate to compliance with the provisions of the Constitution
  • 2. A judge shall not engage in any other occupation whilst in office[181].
  • 3. The proper status of judges shall be determined by the law[182].
Article 99: The Structure of the Judiciary
  • 1. The Judiciary consists of the courts and the Procuracy[183].
  • 2. The judges and the members of the Procuracy are independent when exercising their judicial functions and shall be guided only by the law.
Article 100: The Courts

The courts of the Republic of Somaliland shall consist of:

  • 1. the Supreme Court;
  • 2. the Appeal Courts of the Regions;
  • 3. the Regional Courts;
  • 4. the District Courts; and
  • 5. the Courts of the National Armed Forces.
Article 101: The Supreme Court
  • The Supreme Court is the highest organ of the Judiciary and is also at the same time the Constitutional Court[184]. In addition to the Chairman, the number of judges in the court shall not be less than four[185]. A special law shall govern the court[186].
Article 102: The Lower Courts
  • The appointment and the conduct of the work of the lower courts (the Appeal Courts of the regions, the Regional and the District Courts) shall be determined by a special law[187].
Article 103: The Procuracy
  • The Procuracy of the state shall consist of the Attorney General and his deputies[188].
Article 104: The Courts and Procuracy of the Armed Forces
  • 1. The courts of the Armed Forces shall have special jurisdiction in hearing criminal charges[189] brought against the members of the armed forces in peace or war.
  • 2. The courts and procuracy of the Armed Forces shall be determined by a special law.
Article 105: The Appointment of the Chairman and Judges of the Supreme Court
  • 1. The President, in consultation with the Judicial Commission[190] and having considered the level of education, professional experience and good character of the appointees, shall appoint the Chairman and judges of the Supreme Court. The appointment of the Chairman of the Supreme Court is subject to confirmation by the Houses of Parliament at a joint sitting which shall be held within three months of the date of the appointment.

    The highest-ranking judge in seniority among the Supreme Court judges shall act as the Deputy Chairman of the Court.
  • 2. No person who does not fulfil the following conditions shall be appointed as Chairman of the Supreme Court:
    • a) He must be a citizen of the Republic of Somaliland.
    • b) He must possess a university degree in a recognised law course.
    • c) He must have professional experience of not less than ten years[191] in total; and must have worked as a judge and/or a prosecutor, and/or lawyer, and/or law lecturer.
  • 3. The President may relieve the Chairman of the Supreme Court of his duties but shall require the approval of the both the House of Representatives and the House of Elders[192].
Article 106: The Relationship of the Judicial Bodies and the Ministry of Justice
  • 1. The Ministry of Justice shall be responsible for fulfilling the administrative decisions[193] of the Judicial Commission.
  • 2. The working relationship of the Ministry of Justice and the judicial organs shall be set out in a law.

[180] I have translated “Qaran” as “the state” rather than “the nation” which is its normal meaning.

[181]Judges cannot also be members of political parties nor can they engage in any activities that might damage the office they hold - Article 26(3) of the Organisation of the Judiciary Law 2004.

[182] The Organisation of the Judiciary Law 2004 has replaced the 1993 similarly titled Law. The Law lays down the structure of the courts and the procedures for appointment of judges at all levels, their qualifications, salaries and privileges. Judges in courts other than the Supreme Court are appointed by the Judicial Commission which is set up under Article 107 of the Constitution.

[183] This refers to the national prosecution service, which, in Somali, is known as “Xeer-ilaalinta” meaning literally “the guardians of the law”. Although it is not mentioned in the Constitution, the Somaliland Attorney General’s Office has a wider role than prosecution services, and, for example, looks after civil suits on behalf of the Government organs and inspects the prison system. Article 45 of the 2004 Law list the duties of the office as not only instituting criminal charges and directing the police in criminal investigations, but also protecting the rights of orphans and incapacitated persons, instituting and/or intervening in civil proceedings where the public interests demands his intervention, preferring appeals in criminal and appropriate civil matters, inspecting the prisons and other places of detention, and undertaking other tasks assigned to the Office under the Constitution, such as Article 79(2). I have, therefore, chosen the word “the Procuracy” as a generic term for this office of state. Article 103 sets out the composition of the Procuracy, and it is unclear why it is considered to be part of the Judiciary, when, indeed under Article 113, it is identified as being an organ of the state and under Articles 90(3)(h) and 114, its head, the Attorney General, is appointed in the same way as the heads of other state organs and is very much part of the Executive. The reason appears to be historical as after the union of Somaliland and Somalia, the first Organisation of Judiciary Law (Law No: 3 of 12/6/1962) which set up this office followed the Italian Pubblico Ministero office which was functioning in Somalia and which undertook prosecutions for major crimes whilst other prosecutions were undertaken by Regional Judges. The Office of Attorney General was then given the combined new powers as well as civil powers which were previously undertaken by the Judiciary Law (Law No: 3 of 12/6/1962) which set up this office followed the Italian Pubblico Ministero. The Somaliland Constitution maintained the same duties and position for the Attorney General, but there is still a serious question mark over the retention of this office as part of the Judiciary, when it clearly belongs to the Executive branch. Whilst the office of Attorney General has no judicial functions, the Attorney General himself belongs to the Judicial Commission (see Article 107).

[184] Under Article 6 of the Organisation of the Judiciary Law 2004, the Constitutional Court consists of the Chairman and all the judges of the Supreme Court and shall consider all issues as a full bench. The court has the exclusive jurisdiction to decide on any suits from interested parties relating to decisions of the Executive and the Legislative branches of the state, which are considered to be unconstitutional; and to interpret the provisions of the Constitution and other laws, over which there may be a conflict.

[185] In addition to the Chairman who was appointed in 2004, there are currently six Supreme Court Justices, all appointed on 29 June 2002 by the President Dahir Rayale Kahin.

[186] The Organisation of the Judiciary Law 2004, Articles 6 –10 deal with the composition and functions of the Supreme Court.

[187] The Organisation of the Judiciary Law 2004.

[188] The Deputies of the Attorney General are appointed by the Judicial Commission on the advice of the Attorney General – see Article 108 (below and Article 44(3) of the Organisation of the Judiciary Law 2004).

[189]These courts deal only with military personnel under the Code of Military Criminal Law in Peace and War (Legislative Decree No: 2 of 24/12/1963 and the Code of Military Criminal Procedure in Peace and War (Legislative Decree No: 1 of 31/3/1964).

[190] See Articles 107 and 108 for the composition and functions of the Judicial Commission.

[191] In the previous Constitution, the requisite experience was 20 years.

[192] In the previous Constitution, the President required the written consent of the Standing Committees of both Houses of Parliament

[193] These decisions are the ones relating to the functions of the Commission, which are set out in Article 108 of the Constitution. Article 34 of the 2004 Law makes this link, for the avoidance of any doubt (a there has been some concerns in this respect) and adds that “the decisions of the Judicial Commission shall come into force when the Commission makes them and signs them, and it is incumbent on the Ministry of Justice to implement them.” Final Decisions relating to disciplinary issues shall be implemented by the Ministry within 7 days (Article 39(4) of the 2004 Law). In these cases concerning disciplinary action, the subject may ask for a review of the decision within 7 days, and the Commission is obliged to consider the review (Article 42 of the 2004 Law).