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 CRIMINAL PROCEDURE CODE

The criminal procedure in Somaliland was based on the Indian Code of Criminal Procedure and the Indian Evidence Act 1872.  Clause 10 of the Somaliland Order in Council 1899 confirmed that “subject to the other provisions of the Order, the Code of Criminal Procedure and the other enactments relating to the administration of the criminal justice in India, for the time being applicable to the Protectorate shall have effect ...”.  Clause 18 of The 1929 Somaliland Order in Council which repealed the 1899 Order reiterated the same provisions. The Code as applied in Somaliland was set out in Somaliland Criminal Procedure Ordinance No. 4 of 1926 [6th September 1926] with some amendments to suit the Somaliland circumstances. Section 2 of the Code stated that it applied to ‘all criminal proceedings’, and s. 4 confirmed that all offences under the [Indian] Penal Code shall be ‘investigated, enquired into, tried, and otherwise dealt with according to the provisions’ of the Code.  The Code was since then  amended on many occasions, primarily to accommodate the developments and changes in the court structures and the changes made to the Indian CCP.  By the 1950s, the Somaliland Criminal Procedure Code consisted of 39 Chapters containing 418 sections and 4 Schedules dealing with Magistrates fees, tables of the Penal Code offences, ordinary powers of magistrates, and powers of the District Courts.

After the union of the independent State of Somaliland with Somalia in July 1960, the National Assembly passed Law No: 5 of 30 January 1962 which delegated to the Government power to enact, within six months, a Penal Code, a Criminal Procedure Code, a Traffic Code and an Organisation of the Judiciary Law.  Contini  remarks in his book, The Somali Republic: An Experiment in Legal Integration, Frank Cass & Co, London (1969) at page 45,  that to produce an integrated Penal Code and  Criminal Procedure Code within six months was “a Herculean endeavour”.  As it was “obviously impossible to produce ex novo two original codes within the allotted time, the first question was whether to use” the Somaliland law or the Somalia law. The deciding factor was, in end, the choice of the Somalian members “as most of the ministers and government officials were Italian trained” and so they opted for Italian Penal Code.  However, as some of them were “impressed with the expeditious handling of criminal cases during the British military administration of the South (Somalia) in the 40s” [after Italy was defeated and Somalia was administered by the British military for a few years before it was handed back to Italy as an UN trusteeship territory],  it was decided that, exceptionally, the Criminal Procedure Code would be based on Somaliland Law.

The Criminal Procedure Code (which consists of 288 Articles) includes concepts which are found in common law countries, such as the presumption of innocence, the onus and burden of proof,  the writ of haebus corpus and (a relatively concise) rules of evidence.  The Code, was, however, affected by  various provisions in the Penal Code, such as Article 81 which states that any offence shall be punishable upon the complaint of the injured party unless it is one of the offences in which proceedings are initiated by the state; and, as  pointed out by Contini, the Code followed Italian law in allowing an injured party to sue for damages at the same time as the criminal case.

The Code (Legislative Decree No: 1 of 1 June 1963) was finally enacted on that date and came into force on 31 March 1965.  The Republic of Somaliland still uses the Criminal Procedure Code, and is very likely to continue using it, with some updating.  However ALL the draconian changes made to the Code by the Somali Republic military dictatorship are considered null and void under, initially,  Article 31 of the Somaliland National Charter and then under  Article 130(5) of the Somaliland Constitution which confirms that only pre 1991 laws, which were not  inconsistent with Sharia or with individial rights and freedoms, can be in force in Somaliland until  they are replaced with modern laws.  In the first few years of its 1969 coup, the military dictatorship amended the Criminal Procedure Code drastically and repealed the habeus corpus provisions (Article 66 of the Code - initially suspended under the military council - SRC- Law No. 3 of 3 March 1970 and then abolished under SRC Law No. 64 of 10 October 1970)  and many  of its other due process provisions by introducing arbitrary detentions, secret police with unlimited powers of detention and special military courts.  These amendments and the security decrees passed by the dictatorship are therefore null and void and are no longer in force in Somaliland, as they do not meet the the constitutional Article 130(5)  test. (For more information about these security laws - see this page. )

The changes to the Code made by the 1972 Amendment of the Criminal Procedure Code (Law No. 84 of 12 December 1972) are still used in Somaliland,  Somalilandlaw.com is concerned about the constitutionality of the two of the changes introduced by these amendments:

a)  Article 128 C,  paragraph 4, states that cases tried summarily where the sentence is a fine only shall not have a right of appeal. This is plainly inconsistent with fundamental rights to an appeal against a criminal conviction, such as Article 14(5) of the International Covenant on Civil and Political Rights. 

b) Article 128D which introduced the  trials in absentia needs to be considered very carefully. International human rights organisations do not agree with trials in absentia except for in very limited circumstances where an accused person has deliberately absented himself  from the proceedings after they have begun or had been so disruptive that he had to be removed temporarily.  The linked provision in Article 128F of the attachment of the property of an accused person to be tried in absentia is highly suspect and fails to provide due process to the proprietor of such property.  Trials in absentia were introduced by the dictatorship for many new offences aganist the state and Articles 128C and 128D should therefore be considered against the constitutional Article 130 test mentioned above.

The Criminal Procedure Code 1963 - As passed and printed in 1963- 

(PDF files)

NOTE:

As stated above the copy of the Criminal Procedure Code above is as printed when it was passed in 1963 and does not include any amendments before 1991 and neither does it reflect the changes made to its provisions by the Constitution and the new laws of the Republic of Somaliland since 1991. Unfortunately, the fairly recent translation of the Code into Somali suffers from the same defect in that it does not incorporate any of these changes either.

We shall be publishing later this year the (annotated) Somaliland Criminal Procedure Code which reflects all the changes we can trace and which also refers to the provisions of other linked Somaliland legislation, such as the Somaliland Organisation of the Judiciary Law and the Somaliland Juvenile Justice Law.   

See also the Somaliland Criminal Justice page for more information on the workings of the criminal justice system.