SomalilandLaw.com Comments on
On 27 August 2006, the Somaliland Armed
Forces Court of first instance sitting at Hargeisa sentenced four Hargeisa
Prison officers to prison for terms ranging from one year to nine years. The officers were at a prison watch when, on
27 March 2006, six prisoners detained for terrorism offences attempted to escape. This was a serious incident concerning dangerous
prisoners, and the officers were accused of dereliction of duty and other charges
under (we assume) the 1963 Somali Code of Military Criminal Law in Peace and
War (as amended).
Somalilandlaw.com’s concern about this matter is
the fact that 15 years after the dictatorship, we are still dealing with prison
officers (and police officers) as members of the armed forces, rather than as members
of uniformed law enforcement public officers.
The incorporation of the corrections (or
custodial) corps and the police into the “armed forces” (ciidamda
qalabka sida) started with
the onset of the military dictatorship in 1969 when the military junta co-opted
some police generals, but not the prisons “general”. Siyad Barre’s Constitution mentioned the
duties of the “armed forces” under Articles 108 which included fighting the
enemies inside and outside! In contrast,
the 1960 Somali Republic Constitution mentions briefly the police separately
from the “Armed Forces” in Article 97(4) in their role of working with the
judiciary. So what is the position under
the Somaliland Constitution? Like the 1960 Constitution, the Somaliland
Constitution mentions the Police and Corrections “Forces” (Ciidamada
Booliiska iyo Asluubta) in Article 124 separately from the National Armed
Forces or, more literally, the National Force (Ciidanka
Qaranka) which is dealt with in Article 123. The duty of the National Armed Forces is the protection
and defence of the country. Although both the police and the corrections corps
are referred to in the Constitution as “ciidan” i.e force, their duties are described in Article 124 as
being “protecting the peace and enforcing the law” in respect of the police and
“guarding and reforming prisoners” in respect of the corrections force.
As for the relevant courts, Article 100(5) of the Somaliland
Constitution says that Somaliland shall have, in addition to the normal courts,
courts for “the National Forces” (Ciidamada Qaranka) and Article 104 adds that the courts of the Forces shall have
special jurisdiction in hearing criminal
charges brought against members of the National
Armed Forces (Ciidamadaa Qaranka) in times of peace and war. Both these Articles talk about “Forces” (Ciidamada) in plural whilst Article 123 refers to the “National
Force” (Ciidanaka Qaranka),
which suggests that the other “forces” are those mentioned in the following
Article 124, i.e those of the police and the
Corrections. But, if that is the case, why not deal with them all in one Article
as in the Siyad Barre Constitution and more importantly
why refer to one of them only as the “National Force” (Ciidanka
Qaranka)? So there are two possible interpretations:
a)
Disregard
the word national (Qaranka) in Articles 100(5) and
104 and 123, and as the word “force” appears in all these Articles as well as
Article 124, then the Armed Forces Courts will also apply to the police and the corrections forces; or
b)
the
use of the plural word “forces” in Articles 100(5) and 104 is not significant
as there is only one “national” force under the constitution, i.e the “Ciidanka Qaranka” described in Article 123 which corresponds to the
military, as a whole and may well involve other various forces such as the Army,
Air Force, Navy etc and hence the armed forces courts relate to them only, and
not to police and corrections “forces”. After all, the use of the phrase “force” does
not always carry military connotations, as many countries often described their
police as a “force”.
With these difficult issues about
interpretation, I am not surprised that an assumption was made that Military Courts
were the right forum for these cases against the prison officers, but there are
enough arguments, in my view, for a definitive interpretation to be
sought from the
Until the Constitution is changed to make
this issue much more clearer, Somlilandlaw.com
urges that:
a)
Parliament
and the courts should interpret the Constitution in a way which takes the
police and corrections services out of the jurisdiction of Military Law in criminal
matters. The Penal Code can deal
adequately with issues such as dereliction of duty, and, in any case, new
offences and disciplinary
codes for both services can be introduced to plug any gaps.
b)
As
the National Armed Forces (Ciidanka Qaranka) are about to be given proper military ranks, no similar
ranks should be extended to the police and the corrections services. No
more police or prisons Generals or Colonels, please – these ranks should recerved for the military only.
c)
We
should go back the
d)
Parliament
should take this demilitarisation further and when reviewing the Police Law,
should add that only members of the police service shall have powers of arrest. This will not stop the police having special
units, as needed.
e)
Parliament
should, at the same time, ensure that no other secret para-military
forces, which are unacceptable under the Constitution, develop and that all government
civilian intelligence units operate under a law and are accountable through parliamentary
oversight undertaken by a special Committee of both Houses.
Somalilandlaw.com
7 September 2006