Description of the State, General Principles & Fundamental Rights

Part One: General Description

Article 1: The State of the Republic of Somaliland
  • 1. The country which gained its independence from the United Kingdom of Great Britain and Northern Ireland on 26th June 1960 [7]and was known as the Somaliland Protectorate and which joined Somalia on 1st July 1960 so as to form the Somali Republic and then regained its independence by the Declaration of the Conference of the Somaliland communities held in Burao between 27th April 1991 and 15th May 1991 shall hereby and in accordance with this Constitution become a sovereign and independent country known as “The Republic of Somaliland”.
  • 2. Sovereignty resides in the people who shall exercise it in accordance with the Constitution and other laws.
Article 2: The Territory of the Republic of Somaliland
  • 1. The territory of the Republic of Somaliland covers the same area as that of the former Somaliland Protectorate[8] and is located between Latitude 8’ to 11’ 30’ north of the equator and Longitude 42’ 45 to 49’ East; and consists of the land, islands, and territorial waters[9], above and below the surface, the airspace and the continental shelf.
  • 2. The Republic of Somaliland is bordered by the Gulf of Aden to the north; Somalia to the east; the Federal Republic of Ethiopia to the south and the west; and the Republic of Djibouti to the north west.
  • 3. The territory of the nation is inviolable, and shall not be trespassed upon.
Article 3: The Capital
  • The capital of the Republic of Somaliland is Hargeisa.
Article 4: Citizenship
  • 1. Any person who is a patrial[10] of Somaliland being a descendant of a person residing in Somaliland on 26th June 1960 or earlier shall be recognised as a citizen of Somaliland.
  • The law[11] shall determine the acquisition or lossof the citizenship of Somaliland.
Article 5: Religion
  • 1. Islam is the religion of the Somaliland state[12], and the promotion[13] of any religion in the territory of Somaliland, other than Islam, is prohibited.
  • 2. The laws of the nation shall be grounded[14] on and shall not be contrary to Islamic Sharia.
  • 3. The state shall promote religious tenets (religious affairs) and shall fulfil Sharia principles and discourage immoral acts and reprehensible behaviour[15].
  • 4. The calendar shall be the Islamic Calendar based on the hijra[16], and the Gregorian Calendar.
Article 6: Language
  • 1. The official language of the Republic of Somaliland is Somali and the second language is Arabic.
  • 2. Other languages shall be used, when necessary.
Article 7: The Flag, the Emblem and the National Anthem
  • 1. The flag of the Republic of Somaliland shall consist of three horizontal, parallel and equal sections, the top section of which is coloured green and has inscribed in its midst in white in Arabic language (the phrase) La Ilaaho Ila-Allaah Muhammad Rasuulah-Allaah(There is no God, but Allah and Mohammad was his Prophet); the middle section is white and has inscribed in its midst an equally sided five pointed black star; and the bottom section is coloured clear red.[17]
  • 2. The emblem[18] of the nation shall consist of a coffee coloured falcon with (the words), in Arabic language, “ALLAHU AKBAR” (God is great) inscribed on its breast. Below the eagle are two hands shaking, and a set of scales hang above it and come down on both of its sides. The falcon and the scales and hands are in turn surrounded on both sides and below by two strands of green leaves intertwined at the base, and with the Arabic words Bismillahi Rahmani Rahim[19] inscribed at the top gap between the two leaves.
  • 3. The National Anthem shall be determined by law and shall reflect the principles of the Constitution, the national aspirations, and co-operative social order; and shall have its own unique music which shall be different from that of other countries.
  • 4. Any partial or total changes to the flag, the emblem and the national anthem shall be approved by a resolution of the House of Representatives.

Part Two: General Principles

Article 8: Equality of Citizens
  • 1. All citizens of Somaliland shall enjoy equal rights[21] and obligations before the law, and shall not be accorded precedence[22] on grounds of colour, clan, birth, language, gender, property, status, opinion etc.[23]
  • 2. Precedence and discrimination on grounds of ethnicity, clan affiliation, birth and residence is prohibited; and at the same time programmes aimed at eradicating long lasting bad practices shall be a national obligation.[24]
  • 3. Save for the political rights reserved for citizens, foreigners lawfully resident in Somaliland shall enjoy rights and obligations before the law equal to those enjoyed by citizens.
Article 9: Political System
  • 1. The political system of the Republic of Somaliland shall be based on peace, co-operation, democracy and plurality of political parties.
  • 2. The number[25] of political parties in the Republic of Somaliland shall not exceed three (3).
  • 3. A special law[26] shall determine the procedures for the formation of a political party, but it is unlawful for any political party to be based on regionalism or clanism .
Article 10: Foreign Relations
  • 1. The Republic of Somaliland shall observe all treaties[27] and agreements entered into by the former state of Somalia with foreign countries or corporations provided that these do not conflict with the interests and concerns of the Republic of Somaliland.
  • 2. The Republic of Somaliland recognises and shall act in conformity with the United Nations Charter and with international law, and shall respect the Universal Declaration of Human Rights[28].
  • 3. The Republic of Somaliland accepts the principles of the self-determination of the nations of the world.
  • 4. It accepts that political disputes which arise shall be settled through dialogue and peaceful means, and shall respect the territorial integrity of other countries.
  • 5. It shall endeavour to replace the long-standing hostility between the countries in the Horn of Africa with better understanding and closer relations.
  • 6. The state of the Republic of Somaliland is an independent republic which has its place among the Arab nations, and the peoples of Africa and the Islamic World, and shall accordingly endeavour to join the United Nations, the Organisation of African Unity, the Arab League and Organisation of Islamic States.
  • 7. The state of the Republic of Somaliland shall oppose terrorism (and similar acts), regardless of the motives for such acts.
Article 11: The National Economy
  • 1. The state shall lay down the national economic policy based on the principles of free enterprise and the joint working of private property, public property, the national wealth and foreign investment so as to realise the growth of productivity, the raising of the standard of living, the creation of jobs, and, in general, the advancement of the economy of the nation.
  • 2. In order to ensure that the economic system does not lead to the exclusive enrichment of a group or a small section of the public, and to avoid (both) the creation of economic classes consisting of those who are prosperous and those who are not, and the widening of the economic gulf between the urban and rural communities, the state shall ensure that social benefits and economic opportunities are provided in a just and equitable manner.
  • 3. The state shall ensure the security[29] of foreign investment in the country. Such investment shall be regulated by law[30].
Article 12: Public Assets, Natural Resources and Indigenous Production
  • 1. The land[31] is a public property commonly owned by the nation, and the state is responsible for it.
  • 2. The care and safeguarding of property, endowments and public assets is the responsibility of the state and all citizens; and shall be determined by law.
  • 3. The Government shall have the power to own and possess movable and immovable property; and to purchase, sell, rent, lease, exchange on equivalent value, or otherwise expend that property in any way which is in accordance with the law
  • 4. The central state is responsible for the natural resources of the country, and shall take all possible steps to explore and exploit all these resources which are available in the nation’s land or sea. The protection and the best means of the exploitation of these natural resources shall be determined by law[32].
  • 5. Where it is necessary to transfer the ownership or the benefits of a public asset, the transfer shall be effected in accordance with the law[33].
  • 6. The state shall encourage indigenous economic production such as agriculture, livestock, fisheries, minerals, production of frankincense and myrrh and gum etc., and manufacture based on indigenous products.
  • 7. The payment of Zakat[34] is a cornerstone of Islam, and its administration shall be determined by law.
Article 13: Banks
  • The state shall establish a Central Bank which shall direct the monetary system and the currency of the nation. The opening of commercial and development banks shall be made possible and private banks shall be accorded preferential status.
Article 14: Taxes and Duties
  • 1. The imposition of taxes and other duties shall be based on the interests and well being of the society. Therefore, no taxes or duties which have not been determined by law shall be collected.
  • 2. The levying, waiver and changes in taxes and other duties shall be determined by law.
  • 3. Usury and commercial practices[35] which are against the interests of the society and unlawful enrichment are prohibited.
Article 15: Education, Youth and Sports
  • 1. The state shall pay particular attention to the advancement, extension and dissemination of knowledge and education as it recognises that education is the most appropriate investment that can play a major role in political, economic and social development.
  • 2. Education is in the public interest, and is rooted in the experience and the special environment of the Somaliland society.
  • 3. The learning of and training in the Islamic religion is a fundamental path and shall be compulsory at all levels of education. At the same time, the promotion of Koranic schools is the responsibility of the state.
  • 4. Citizens and resident foreigners may open schools and educational or training projects of all levels in accordance with the Education Law[36].
  • 5. The state shall accord a first priority to primary education, and shall endeavour to spread primary education to the regions and the districts.
  • 6. The eradication of illiteracy and the (provision) of adult education is a national obligation, and the efforts of the public and the state shall be combined to fulfil this obligation.
  • 7. The national policy is that primary education shall be free[37].
  • 8. In order to ensure a healthy physical and mental growth of the young, and to improve their well being and maturity, the state shall give special attention to the promotion and encouragement of physical education and sports which will be recognised as one of the basic subjects in the educational curriculum of both state and other schools.
Article 16: Promotion of Knowledge, Literature, Arts and Culture
  • 1. The state shall promote knowledge and literature, and shall encourage creativity and research.
  • 2. The law shall determine the rights to authoring, creating and inventing[38].
  • 3. The state shall promote the Arts and the modest culture of the society whilst at the same time benefiting from the knowledge of other world societies. Literature, the arts, and indigenous sports shall be specially encouraged whilst Islamic behaviour is observed.
  • 4. The state shall promote the Arts and the modest culture of the society,[39] and shall eradicate customs which damage religion, development, culture and the health of the society. The production of alcohol and the cultivation or the sale or use of intoxicants (drugs) in the territory of Somaliland are prohibited[40].
Article 17: Health
  • 1. In order to fulfil a policy of promoting public health, the state shall have the duty to meet the country’s needs for equipment to combat communicable diseases, the provision of free medicine, and the care of the public welfare.
  • 2. The state shall be responsible for the promotion and the extension of healthcare and private health centres.
Article 18: The Environment and the Relief of Disaster
  • 1. The state shall give a special priority to the protection and safeguarding of the environment, which is essential for the well being of the society, and to the care of the natural resources. Therefore, the care of and (the combating of) the damage to the environment shall be determined by law[41].
  • 2. The state shall undertake relief in disasters such as famine, storms, epidemics, earthquakes, and war.
Article 19: The Care of the Vulnerable of the Society
  • The state shall be responsible for the health, care, development and education of the mother, the child, the disabled who have no one to care for them, and the mentally handicapped persons who are not able and have no one to care for them
Article 20: Work, Trade, and the Welfare of Employees
  • 1. All able citizens have a right and a duty to work. The state shall, therefore, be responsible for the creation of work and the facilitating of the skills training of employees.
  • 2. The conditions of work of the young and women, night working and working establishments shall be regulated by the Labour Law.
  • 3. All employees have a right to payment appropriate to the work they undertake, and are free to enter into agreements with their employers on an individual or collective basis. Forced labour is prohibited.
  • 4. The state shall endeavour to create understanding and clear rights between employees and employers and shall accordingly introduce a law[42] (in this respect).
  • 5. Sate employees and members of the armed forces shall be entitled remuneration, pension and to payments for sickness, injury, or disability in accordance with the law.
  • 6. The state shall promote the support systems, insurance and safety of employees and shall strengthen the relevant responsible bodies.

Part Three

The Rights of the Individual, Fundamental Freedoms and the Duties of the Citizen

Article 21: Implementation and Interpretation
  • 1. The legislative, executive and judicial branches of the state and the local government of the regions and the districts of the Republic of Somaliland, of all levels, shall be bound by the provisions of this Part.
  • 2. The articles which relate to fundamental rights and freedoms[43] shall be interpreted in a manner consistent with the international conventions on human rights[44] and also with the international laws referred[45] to in this Constitution.
Article 22: Political, Economic, Social and Electoral Rights
  • 1. Every citizen shall have the right to participate in the political, economic, social and cultural affairs in accordance with the laws and the Constitution[46].
  • 2. Every citizen who fulfils the requirements of the law[47] shall have the right to be elected[48] (to a public office) and to vote.
Article 23: Freedom of Movement and Association
  • 1. Every person who is a citizen or lawfully resident in the country shall be free to move to or settle at any place of his choice, or leave or return to the country at will.
  • 2. The matters (rights) set out in Clause 1 of this Article are subject to any law[49] which forbids the movement to or settlement at specific places or during specific times.
  • 3. All citizens shall have the right to form, in accordance with the law, political[50], educational, cultural, social, and occupational or employees’ associations[51].
  • 4. Associations with objectives which are contrary to the national interest or are secret or are military in nature or armed or are otherwise against the law, whatever their outward appearance might be, are prohibited.
Article 24: The Right to Life, Security of the Person, Respect for Reputation and Crimes against Human Rights
  • 1. Human life is the gift of Allah and is beyond price. Every person has the right to life, and shall only be deprived of life if convicted in a court of an offence in which the sentence laid down by law is death.
  • 2. Every person shall have the right to security of his person. Physical punishment[52] and any other injury to the person is prohibited.
  • 3. Every person shall have the right to have his dignity, reputation and private life respected.
  • 4. Crimes against human rights such as atrocities, extra-judicial killings, torture and other similar acts shall have no limitation periods.
Article 25: The Right to Liberty, Guarantees and the Conditions of Rights and Freedoms
  • 1. No person shall be deprived of his liberty except in accordance with the law.
  • 2. No person may be arrested, searched, or detained, except when caught in flagrante delicto,[53] or on the issue of a reasoned arrest warrant by a competent judge[54].
  • 3. The state shall guarantee to all citizens their rights and freedoms and the punishment for any of their infringements shall be determined by law.
  • 4. The freedoms of the person shall not override the laws protecting the public morals, the security of the country or the rights of other individuals.[55]
Article 26: Crime and Punishment
  • 1. Crimes and (their) punishment shall be laid down by the law, and no punishment shall be administered in a manner which is contrary to the law.
  • 2. The liability for the punishment of any crime shall be confined to the offender only.
  • 3. An accused person is innocent until proven guilty in a court[56].
Article 27: The Rights of Persons Deprived of theirLiberty
  • 1. Any person who is deprived of his liberty has a right to meet as soon as possible his legal representative[57], relatives or any other persons he asks for.
  • 2. Any person who is deprived of his liberty because of alleged criminal offences shall have the right to be brought before a court within 48 (forty eight) hours of his arrest[58].
  • 3. No person shall be compelled to proffer a confession, a witness statement or testimony under oath. Any such matters (evidence) obtained under duress shall be void[59].
  • 4. No person shall be detained in a place which is not determined by law.
  • 5. The law shall lay down the maximum period[60] in which a person can be detained in custody pending investigations.
  • 6. Any accused person who is convicted by a court shall have the right to appeal to a higher court.
  • 7. When a person is detained in custody or his detention is extended, he shall have the right to have his status communicated to any person he so chooses.
  • 8. Prisons are for reform and correction. The state is responsible for the rehabilitation and skills training of prisoners so that they can return to society with reformed characters.
  • 9. The punishment for the infringement of Clauses 1 to 7 of this Article shall be determined by law[61].
Article 28: Right to Sue and Defend
  • 1. Every person shall have the right to institute proceedings in a competent court in accordance with the law.
  • 2. Every person shall have the right to defend himself in a court.
  • 3. The state shall provide free legal defence in matters which are determined by the law, and court fees may be waived for the indigent.
Article 29: The Sanctity of the Home
  • The home and other dwellings shall be inviolable, and their surveillance, search and entry shall not be allowed without a reasoned order from a judge. Any such order must be read properly to the proprietor or occupier before entry is effected. It is prohibited for any person carrying out a search to contravene the order of the judge.
Article 30: Freedom of Communication
  • No person’s private written communication, postal letters, or telecommunications shall be interfered with except in matters in which the law allows their investigation, tracing or listening in and a reasoned order from a judge has been obtained.
Article 31: The Right to Own Private Property
  • 1. Every person shall have the right to own private property, provided that it is acquired lawfully.
  • 2. Private property acquired lawfully shall not be expropriated except for reasons of public interest and provided that proper compensation is paid.
  • 3. The law shall determine matters that are within the public interest, which may bring about the expropriation of private property.
Article 32: Freedom of Public Demonstration, Expression of Opinion, Press and other Media
  • 1. Every citizen shall have the freedom, in accordance with the law, to express his opinions orally, visually, artistically or in writing or in any other way.
  • 2. Every citizen shall have the freedom, in accordance with the law, to organise or participate in any peaceful assembly or demonstration.
  • 3. The press and other media are part of the fundamental freedoms of expression and are independent. All acts to subjugate them are prohibited, and a law shall determine their regulation.
Article 33: Freedom of Belief
  • 1. Every person shall have the right to freedom of belief, and shall not be compelled to adopt another belief. Islamic Sharia does not accept that a Muslim person can renounce his beliefs.
  • 2. The Mosque is a blessed place and deserves veneration. It is the place for preaching religion and for providing the nation guidance in spiritual and temporal matters, and the preaching therein of matters which would divide the nation (sedition) is prohibited. The state shall be responsible for its general protection and any practicable support.
Article 34: The Duties of the Citizen
  • 1. Every citizen shall have the duty, in accordance with the law, to strengthen the unity of the nation, the protection of the sovereignty of the state, and the defence of the country and the religion.
  • 2. Every person has the duty to respect the Constitution and the laws of the country.
  • 3. Every person has the duty to pay promptly his taxes and other duties as imposed under the law.
  • 4. Every person shall have the duty to care for, protect and save the environment.
  • 5. The law[62] shall determine the punishment for failure to fulfil the duties imposed in Clauses 1 to 4 (of this Article).
Article 35: Extradition of Accused and Convicted Persons and Political Asylum
  • 1. Any foreigner who enters the country lawfully or is lawfully resident in the country and who requests political asylum may be accorded asylum if he fulfils the conditions set out in the law governing asylum.
  • 2. The extradition of a Somaliland citizen to another country is prohibited.
  • 3. The Republic of Somaliland may extradite to their countries convicted or accused foreigners if there is a treaty between the Republic of Somaliland and the country requesting their extradition.
Article 36: The Rights of Women
  • 1. The rights, freedoms and duties laid down in the Constitution are to be enjoyed equally by men and women save for matters which are specifically ordained in Islamic Sharia[63].
  • 2. The Government shall encourage, and shall legislate for[64], the right of women to be free of practices which are contrary to Sharia and which are injurious to their person and dignity.
  • 3. Women have the right to own, manage, oversee, trade in, or pass on property in accordance with the law.
  • 4. In order to raise the level of education and income of women, and also the welfare of the family, women shall have the right to have extended to them education in home economics and to have opened for them vocational, special skills and adult education schools.

[7] The first Constitution of Somaliland (then formally known as the independent State of Somaliland) came into force on that date. It consisted of 53 sections and included, among other things, provisions setting out the Executive (the Council of Ministers headed by a Prime Minister), The Legislative Assembly ( a speaker and 33 members), The Judicature (headed by the Somaliland High Court), the public service, citizenship etc. The Constitution was annexed to the Somaliland Order in Council 1960 (S.I 1960/1060).

[8] The Somaliland international boundaries were set in a series of agreements between Great Britain and the neighbouring countries, France (French Somaliland), Ethiopia and Italy (Italian Somalia).

[9] For the extent of the Somaliland territorial waters, see Law on Territorial Sea and Ports (Law No: 37 of 10/09/1972), so far as it is applicable to Somaliland. According to this Law, the territorial sea includes the portion of the sea to the extent of 200 nautical miles within the continental and insular coasts, delimited according to the provisions of articles 2 and 3 of this Law, but this has been supreseded by the UNCLOS, which Somalia acceded to in 1989 and territoal sea is therefore likely to be seen as being 12 nautical miles.

[10] This is not the same as someone born in Somaliland, and patriality is defined in the rest of the clause.

[11] See the Somaliland Citizenship Law (Law No: 22 of 2002). The first Somaliland citizenship law, the Nationality and Citizenship Ordinance 1960 was enacted on 23 April 1960 and came into force, with the birth of the independent State of Somaliland, on 26 June 1960.,.

[12] The constitutions of almost all Arab states, with the exception of Lebanon and Syria) establish Islam as the state religion. In contrast muslim countries, like Indonesia,Mali and Turkey do not include such provisions in their constitutions.

[13] This prohibition covers prostelysing and any public advancement or possibly even public manifestation of another religion, but does not prohibit the private practice (either alone or in a group) of another religion. Although Article 10(2) of the Constitution confirms the Republic’s adherence to the Universal Declaration of Human Rights 1948, this Article does not meet fully the requirements of Article 18 of the Declaration to the effect that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” In 1963, an amendment (Law No; 16 of 29/06/1963) to the 1960 Somali Republic Constitution (Article 29) which prohibited anyone from spreading or “propagandise any religion other than … Islam” was much more explicit in confirming that “every person shall have a right to freedom of conscience and freely to profess his own religion and to worship it subject to any limitations which may prescribed by law for the purposes of safeguarding morals, public health, or order”. This formula for defining the limitation of freedom to manifest one’s religion or belief is acceptable and can be seen, for example in Article 9(2) of the European Convention on Human Rights or Article 1(3) of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981. It is a crime under Article 313 of the Penal Code to bring publicly the religion of the state (Islam) into contempt or to insult it publicly by bringing into contempt persons professing it or places or objects dedicated to worship. Article 314 makes it an offence for anyone to impede or disturb the exercise of functions, ceremonies, or religious practices of the Islamic faith. To confirm equality under the law, Article 315 extends the same protection to any similar crimes committed against any other religion “permitted in the state”.

[14] This Clause confirms that Islamic Sharia will be a source of the law, but it does not rule out other sources, so long as the laws themselves do not contradict the Sharia. It should be noted also that Article 128 confirms that the Constitution shall be based on Islamic principles, and that as it is the supreme law of the land, any law which does not conform to it shall be null and void. As for pre-1991 laws, the test of whether they are still in force depends on whether they conflict with Islamic Sharia or individual rights and fundamental freedoms under the Constitution (see Article 130(5)). Whilst under Article 115, the as yet unformed Ulema Council may formulate declarations about any Sharia matter in which there is a dispute so as to establish an ijtima ( a learned opinion), the Council may only forward their opinions to the Constitutional Court or to which ever office that requested the opinion. In the end only the Constitutional Court (which is also the Supreme Court – see Article 101) has the exclusive jurisdiction to reach a decision about the interpretation or constitutionality of any law. This is set out clearly in Article 6(4) of the Organisation of the Judiciary Law 2004.

[15] This Clause is similar to the directive principles in the following Part Two of this Chapter, and is therefore not justiciable, either – see the footnote relating to the “General Principles”.

[16] The flight of Muhammed (Moxammad, in Somali script) for Mecca to Medina in 620 AD.

[17] The Flag of the Republic of Somaliland:

[18] The emblem of the Republic of Somaliland.

[19] In the name of Allah, the Compassionate and the Merciful.

[20] With the exception of Articles 8 and 9, this Part of the Constitution consists of general principles, which are normally known as “directive principles”. These principles are not usually justiciable and Constitutions usually include an article which makes it clear that they are for guidance only. Indeed the 1997 Somaliland Constitution included Article 50 which stated clearly that “General principles shall not enforced by the courts, but shall be of guidance to the Government in the fulfilment of responsibilities in relation to the implementation of the laws.” On revision of the Constitution in 2000 and its reduction from 156 Articles to 130, this declaratory Article was left out and rather incongruously Article 8 relating to Equality which was in a in another part of the Constitution was brought in this Part. It is submitted, however, that the bulk of this Part titles “General Principles” still contains the directive principles and is likely to be interpreted as being of guidance only. An example of a similar provisions in an African Constitution is that of Articles 110 - 111 of the 1996 Zambian Constitution which state that “110 (1) The Directive Principles of State Policy set out in this Part shall guide the Executive, the Legislature and the Judiciary, as the case may be, in the (a) development of national policies; (b) implementation of national policies; (c) making and enactment of laws; and (d) application of The Constitution and any other law. (2) The application of the Directive Principles of State Policy may be observed only in so far as State resources are able to sustain their application, or if the general welfare of the public so unavoidably demands, as may be determined by Cabinet. 111. The Directive Principles of State Policy set out in this Part shall not be justiciable and shall not thereby, by themselves, despite being referred to as rights in certain instances, be legally enforceable in any court, tribunal or administrative institution or entity”.

[21] This Article is denoting fundamental rights to equality and although it appears in a Part titled “General Principles” and is not in the nature of a “directive principle”. Article 2(1) of the International Covenant on Civil and Political Rights (ICPCR) and article 2 of the African Charter on Human and People’s Rights both confirm that the rights and freedoms in both documents shall be enjoyed “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (ICPCR). The African Charter adds ethnic group and fortune to the characteristics which should not lead to denial of rights. As Article 8(1) ends with a the expression of “etc” (see footnote 19), it is submitted that the these other categories found in the ICPCR and the Charter which are not listed in this Clause of the Article would also be equally covered. But the main issue in this Article is the absence of “religion” as a protected ground. It is likely that this was deliberately left out as signified by the fact that conditions for candidacy to various offices in the Constitution set out that candidates must be muslims – see also footnotes to Article 41 of the Constitution.

[22] I have chosen the word “precedence” rather than “preference” to indicate more aptly the meaning of the Somali phrase "kala saarayn” which refers literally to someone claiming a higher position than another.

[23] The abbreviation “etc” is used to reflect the Somali abbreviation “iwm” which is in the Somali text and is short for “iyo waxyaalaha la mid ah”, meaning, “and other similar matters”, which as mentioned in footnote 18 above could include the similar grounds listed in the ICPCR and the African Charter which do not appear in this Clause, but significantly religion has not been mentioned in this Article.

[24] This last part of the clause relating to bad practices is a new addition. It is submitted that this relates to traditional practices that lead to discrimination and or precedence on the prohibited grounds listed in the clause. This certainly covers the treatment of minority groups, such as Gabooye etc.

[25]The artificial limit on the number of political parties have been chosen to avoid the experience of the early 1960s Somali Republic when a considerable number of political parties based on clan affiliations contested elections and created chaos, specially during and after the 1969 general elections. This clause has to be read as restriction of the right of association enshrined as a fundamental right under Article 23(3) of the Constitution, as well as the international conventions which relate to such a right, such as Article 22 of the International Covenant on Civil and Political Rights (ICPCR) and article 10(1) of the African Charter on Human and People’s Rights..The Presidential and Local Elections Law (Law No: 20 of 2001) limits candidacy for elections to those who appear in the closed lists of the three parties, and hence there is also a further restriction of the right of persons to stand for elections. The restriction on the number of political parties can only, therefore, be held valid in international law (under Article 22(2) of the ICPCR) if it can be said to be “necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of rights and freedoms of others.” For the relevance of international covenants and human rights treaties to this Constitution, see Articles 10(2) and 22(2) of the Constitution and the relevant footnotes.

[26] See The Regulation of Political Associations and Parties Law (as amended) Law No: 14 of 2000. The three parties accepted under the Constitution and this law are UDUB (the current government party) KULMIYE and UCID. These were the three parties that won the highest number of votes at the first nation-wide local elections in December 2002.

[27] Somaliland is clearly indicating its acceptance of “universal treaties” and of international human rights conventions, but succession to bilateral treaties and agreements have to be based on the complicated norms of international law and the terms of any agreements Somaliland may reach with Somalia similar to those entered into by the Eastern European states which emerged out of the dissolution of unions.

[28] See also Article 22(2) below for the application of international conventions and human rights norms to the fundamental rights and freedoms set out in Chapter One, Part Three of the Constitution.

[29] The Somali phrase describing the State’s obligation in respect of foreign investment, “dammaanad qaad” literally means, “standing surety for”. But, in the light of this article’s emphasis on private enterprise, it is respectfully submitted that ensuring the security of such investment, which may include underwriting in certain circumstances, is more likely to be the accurate reflection of this obligation. See also the guarantees and protection given under the various Articles in the new 2004 law governing foreign investments.

[30] The first law was the Foreign Investments Law: Promotion, Protection and Guarantee of Investments 1995, but has now been replaced by a new Law with the same title (Law No: 29/2004).

[31] In view of the various guarantees of private property rights (see the preamble, for example), the phrase “land” here is likely to refer to “common” land, but in the light of the considerable difficulties that have arisen over ownership of land, this clause is seen by the Government as indicating, absent any lawful title to land held by a person, that land remains the property of the State. Whilst referring to this Constitutional Clause, Article 1(1) of the Urban Land Management Law (Law No: 17/2001) confirms that all land is, in general, the property of the state and is vested in the Government, which is responsible for its management and transfer and for proposing laws relating to it. This Law also gives power to the President to issue decrees to transfer compulsorily land needs for the public purposes, which are defined in Article 1(3) of the Law. The Law delineates the respective powers of central and local government in connection with the grant of land. Agricultural land is governed by Ownership of Agricultural Land Law (Law No: 08/99).

[32] As far as minerals are concerned, the Mining Code (Law No: 7 of 9/1/1984) and the Mining Regulations (Decree No: 22 of 9/1/1984), as amended to apply in Somaliland appear to be still in use.

[33]There is a Bill in Parliament titled the Establishment of the Somaliland Privatisation Board which will pave the way for any such transfers.

[34] Zakat is the payment of alms by individual muslims according to formulas based on their income.

[35] But see the Civil Code and the new draft Commercial Code (2004).

[36] Other than Ministerial Decrees and Circulars, it is not clear that any such law has been passed by the Somaliland Parliament.

[37] This clear commitment to free primary education is a new amendment, but it replaces a general provision in the 1997 Interim Constitution that it was the aim of the state that education should, as soon as practicable, be free.

[38] The Trade Marks Ordinance (Law No:9 of 6/8/1939) and the Patents Ordinance (Law No: 9 of 13/11/1924 applied to Somaliland until 1975 when Law No:33 of 18 January 1975 extended the Somalia 1955 Patents on Industrial Designs, Industrial Inventions and Trade Marks Ordinances (1 to 3, respectively) of 22/1/1955. No laws relating to intellectual property have been passed yet by the Somaliland Parliament.

[39] In this revised Constitution, the first line of this clause appears to be a repetition of the first line of the preceding clause.

[40] See also Article 342 (Trading in illegal drugs) and Article 343 (Abetting the use of illegal drugs) and Articles 411 to 417 (dealing with supply and sale and manufacture of alcoholic beverages) of the Somali Penal Code as amended by the Law No: 21 of 2000 (Law on Combating Drug Addiction). The latter law, which was introduced by the House of Elders, came into force on 12 March 2002 and, for the first time in independent Somaliland, introduces drastic corporal punishment for offences relating to drugs and alcohol. For example, Article 1 of the law lays down that anyone who uses drugs shall be sentenced to 40 lashes and imprisonment of 6 months to one year, and if he is seen to be influenced by drugs (or is drunk) in public, the punishment shall be increased with a fine or further imprisonment. There are also serious punishments for habitual users on top of the 40 lashes. The Law also deals with manufacture and supply of drugs and alcohol and repeals Articles 411, 412, 413, 414, 415, 416, 417, 342 and 343 of the Penal Code. So far, there have been no reported corporal sentences, but this Law is the first and only one that has been passed in Somaliland which introduced punishment for a “huduud” offence. If this Law is implemented, Human Rights advocates will argue that the corporal punishment it prescribes is contrary to Article 24(2) of the Constitution which unequivocally makes corporal punishment prohibited within the territory of Somaliland – see also the footnote to Article 24.

[41] See, for example, the Prevention of Range Erosion and Desertification Law (No: 94 of 1998).

[42] The old pre 1991 labour laws are being revised by the Somaliland Ministry of Health & Labour which has recently produced a new Law applicable to non-public employees. The Bill consists of 79 Articles and is a comprehensive replacement of the 1969 Labour Code (Decree Law No:5 of 10 August 1969), which, incidentally, was repealed by Siyad Barre’s regime in 1972 (Labour Code: Law No:65 of 18 October 1972) and in various other decrees since that date.

[43] That is in effect Articles 22 to 36 of the Constitution, but, arguably, Article 8(1) relating to equality also relates to a fundamental right.

[44]This links the interpretation of these rights to the relevant international human rights conventions, and is not confined to the few Siyad Barre’s Somali Democratic Republic acceded to, which were the International Covenant on Economic, Social and Cultural Rights (CESCR), the International Covenant on Civil and Political Rights (CCPR) and its Optional Protocol (all acceded to in the last dying days of the dictatorship on 24 April 1990; The Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment (CAT) acceded to on 23 February 1990, and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) acceded to on 25 September 1975. Somaliland considers itself bound through succession by these conventions and is prepared to go beyond that and has already indicated that it will comply with a number of other UN conventions, as signified by this constitutional provision. Also as Somaliland is an African, Arab and Muslim nation (see Article 10(6) of the Constitution), this constitutional commitment includes regional human rights conventions.

[45] These are the UN Charter and the Universal Declaration of Human Rights which are specifically mentioned in Article 10(2) of the Constitution.

[46] In line with Article 21(2) of the Constitution, this of course includes international conventions.

[47] The main election laws are Law No: 20/2001 relating to Presidential and local council elections and Law No 20-2/2005 relating to the election of the members of the House of Representatives.

[48] The right to stand for election to a political office is of course limited by the combination of the Constitutional limit on the number of political parties in Article 9(2) of the Constitution and the Elections Law which confirms that only candidates who have been proposed by the three political parties can stand for election. Elections laws often lay down conditions for candidacy for office, and the test for their legitimacy of these restrictions, for example under Article 25 of the ICCPR, is that of “reasonableness”

[49] This right of movement is protected internationally by, among other provisions, Article 12 of the International Covenant on Civil and Political Rights (CCPR) which states that these rights “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and art consistent with the other rights recognised in the present Covenant”. Article 12 of the African Charter on Human and People’s Rights 1981 which laso deals with freedom of movement limits restriction of this right to those “provided for by the law for the protection of the national security, law and order, public health or morality”. Any such law should therefore pass this test, which is similar to the one used for derogation from some of the other rights in the Covenant. ” Some of these restrictions are echoed in Article 28(4) of the Constitution.

[50] This is severely limited by Article 9(2) of the Constitution which limits the number of political parties to three. Now that the three political parties have been identified through the Regulation of the Political Association & Parties Law (as amended) Law No: 14 of 2000, no one may form another political “party”, but it is not clear how this restriction in Article 9(2) would limit “political” associations which are not seeking to become a party, but are addressing specific political issues. The test of the propriety of restrictions to freedom of association in the Article 22 of the ICPR is similar ti that noted in the preceding footnote.

[51] The right to form trade unions is part of the right to freedom of association, but is specifically mentioned in Article 22(1) of the ICPR. This right is also covered by International Labour Organisation Conventions, such as the freedom of association and Protection of the Right to Organise Convention 1948 and the Right to Organise and Collective Bargaining Convention 1949.

[52] This unequivocal provision clearly rules out any physical punishment and despite the general principle set out in Article 128(1) that the Constitution shall be based on Islamic Principles and the directive principles set out in Article 5 of the Constitution, any proposal to introduce corporal punishment for the limited number of Huduud offences,such as robbery , fornication (Zina), false accusation (Qazaf), Drinking of intoxicants and apostasy will require constitutional amendment. This issue is likely to come into prominence if the Guurti (House of Elders) initiated 2002 Prevention of Drug Abuse Law (Law No: 21 of 2002) which created a number of “drinking” or drug abuse offences punishable, for the first time in independent Somaliland, by 40 lashes as well as fines is ever implemented. Such punishment is contrary to international norms as it is likely to be seen as “cruel, inhuman or degrading treatment or punishment” (see, for example Article 5 of the Universal Declaration of Human Rights 1948 ; Article 7 of the International Covenant on Civil and Political Rights 1966 and Article 5 of the African Charter on Human & Peoples’ Rights 1981). An example of an African case is the Zimbabwe Supreme Court decision of S v Ncube 1987 (2) ZLR 246 (SC); 1988 (2) SA 702 (ZS) which held thatthe whipping of adults under a 1956 Prison Regulations was inhuman or degrading punishment and contravened s.15 (1) of the Zimbabwe Constitution which provided that no person shall be subject to inhuman or degrading punishment. Article 1 of the Penal Code (1963) declares that “no one shall be punished for an act which is expressly made an offence by law, nor with a punishment which is not prescribed therein” and the range of principal and accessory punishments in the Code are set out in detail in Articles 90 to 142 and do not include corporal punishment.

[53] Articles 34 to 39 of the Criminal Procedure Code set out in details the circumstances when persons may be arrested without a warrant. Article 37 defines the expression “caught inflagrante delicto” as meaning a person “caught in the act of committing an offence; is pursued immediately after the commission of the offence by a police officer, or the injured party, or any other person; and is caught immediately after the commission of the offence, with objects or traces which clearly show that he committed the offence.”

[54] See Articles 40 to 44 of the Criminal Procedure Code.

[55] The effect of this clause is limited by international human rights law ( for example the International Covenant on Civil and Political Rights, the ICCPR) which does not allow for derogation in respect of some rights (such as the right to life; the right not to be subjected to torture or cruel or inhumane treatment or punishment; freedom of thought, conscience and religion etc) but allows some derogation in other rights, such as the right to assembly or to association or in freedom of expression. It is only to these latter rights that this Clause may apply. For example, Article 19 of the ICCPR states that freedom of expression may be restricted as is provided by law and is necessary for the respect of the rights and reputations of others or for the protection of national security or of public order of of public health or morals. Also Articles 21 and 22 of the ICCPR relating to freedoms assembly and association may only be subject to restrictions laid “by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Some of these restrictions are echoed in Article 25(4) of the Constitution.

[56] This also reflected in Article 13(2) of the Criminal Procedure Code (1963): “the accused person is presumed innocent until the conviction has become final”.

[57] Article 15(5) of the Criminal Procedure Code also confirms that “an accused who has been arrested shall have the right to confer freely with his defence counsel al all stages of the proceedings.”

[58] Under Article 39(1) of the Criminal Procedure Code, any “person arrested without warrant shall be taken immediately, and in any case not later than 48 hours from the time of his arrest, before the competent court nearest to the place of arrest: provided that the time necessary for travel to the Court from the place of arrest shall not be included in the 48 hours”. The latter part of this Article is no longer valid as the Constitutional clause does not make any such allowance. For persons arrested on a warrant issued by a judge, Article 45 of the Criminal Procedure Code states that such a person shall, without unnecessary delay, be taken to a competent judge or to a judge of the court nearest to the place of arrest, if the competent judge is situated more than 50 kilometres away. Again this must now be read as being subject to the 48 hour time limit.

[59] Under Article 150 of the Criminal Procedure Code , “ a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the court to have been caused by inducement, threat or promise.” Also Article 151 lays down that no confession made by any person “shall be proved as against such person, unless the confession is made before a judge” and is recorded in writing by the judge, read over to the person by the judge, and signed by the person as welll as the judge (see Article 68 of the Code).

[60] The maximum periods for anyone held in lawful custody before trial are set out in Article 47 of the Criminal Procedure Code and are 90 days for offences punishable by death or life imprisonment, 60 days for offences which fall within the Assize Section of the Regional Courts, 45 days for less serious offences which fall within the jurisdiction of the General Section of the Regional Courts and 15 days for offences which fall within the jurisdiction of the Criminal Section of the District Courts. The Court of Appeal may, on application by the Procuracy increase the period of custody by a period not more than the maximum set out for each offence in this Article 47 of the Code. Until the date of trial is fixed, an accused shall be brought before the court every seven days. Failure to do so shall lead to criminal proceedings against the person responsible if the delay amounts to an offence or to disciplinary action, if it does not – Article 32(2) of the Code.

[61] Articles 460 to 463 of the Penal Code lays down the punishment for crimes against personal liberty such as unlawful seizure/detention (up to 8 years imprisonment); illegal arrest (up to 3 years imprisonment); abuse of authority towards an arrested or detained person (up to 3 years) and arbitrary personal search (up to 1 year).

[62] Other than the matters already covered by the 1962 Somali Penal Code, which Somaliland still uses in accordance with Article 130(5) of this Constitution, now specific law to cover these duties has been passed yet.

[63] This wording is similar to that used in the reservations to the CEDAW- Convention on the Elimination of All Forms of Discrimination against Women (adopted by the General Assembly 34/180 of 18/12/1979, and which entered into force on 3/9/1981) made by the Muslim countries which ratified the Convention. The Somali Democratic Republic did not ratify this Convention by the time Somaliland re-asserted its sovereignty in 1991. Somaliland is likely to make a declaration and reservation similar to other Muslim countries when it does ratify this Convention.

[64] This commitment to issue a law on the rights of women is a new addition. As of yet, no such law has been passed by the Somaliland Parliament.