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  SOMALILAND LEGAL PROFESSION

The Somaliland legal profession is still influenced by the structures set up during the union with Somalia (and especially from the mid 1970s) and continues to consist of two separate branches - Advocates and Notaries.  As Somaliland regains its legal links with common law countries, especially in East and Southern Africa, the extent of this total separation between the two professions of Advocates and Notaries  is very much likely to be revised. 

ADVOCATES

BACKGROUND:

Prior to 1975, the Somaliland legal profession was governed by  the Legal Practitioners’ Rules Ordinance No: 44 of 1957 ( and that of Somalia was covered by Law No: 21 of 27 June 1958).

The Law on Advocates (Law No: 85 of 21 October 1975) was introduced in 1975 and repealed the Somaliland 1957 Ordinance (and the 1958 Somalia Law).

• The 1975 Advocates Law - Text of the Law (without the appendices). Note Article 1 to 16 were later repealed by Article 7 of the Amendment Law (see below).
• Appendix to the 1975 Advocates Law setting up the details of the Advocates Co-operative - Also repealed by the 1986 Law
• Fees List of the 1975 Advocates Law - Also repealed by the 1986 Law.

The 1975 Law set up a roll of advocates held at the then Supreme Court, made advocates a law graduate profession and stopped the use of  unqualified “wakiils” (agents) as court representatives.  The Roll was maintained by a Committee headed by the President of the Supreme Court. Typical of the laws passed under the Siyad Barre dictatorship, the law set up a “co-operative” for the advocates.  There was a condition that to be an advocate, one must “believe in the principles of the Revolution”  and the confidentiality of lawyer-client relationship was subject to “any information that may concern the national security and national unity” (Article 3(1)) - an obligation that preceded their responsibilities to their clients. 

• The Advocates (Amendment) Law (Law No. 3 of 13 January 1986) repealed Articles 1 to 16 of the Law, as well the whole of the Appendix (the co-operative) and the Fees List.

CURRENT SOMALILAND LAWS

UPDATE: The Somaliland Advocates Law (Law No 30/2004 as amended in 2013) which came into force in 2004 has been amended recently and the amended version has now come into force on the date of its signature by President on 28 September 2013.  (The old version of the law is retained here for comparative purposes Xeerkii Hore Qareenada Somaliland (OLD 2004 Law))

This Law had a very controversial birth  and was opposed by  many advocates when it was considered by the House of Representatives in 2004.  The Law set up (under Article 17) an Advocates’ Admission and Disciplinary Council which dealt with applications, annual renewal and discipline of advocates. Previously  the Chair of the Council was appointed by the Minister, but that has now been changed and the Council shall now elect its own chairman.  The Council membership consists of  two advocates nominated by their Association;  a Supreme Court judge; two parliamentarians chosen from amongst  the members of the two Houses of Parliament; and two members appointed by the Minister of Justice, one of whom being the Director of the Judiciary Department of the Ministry who shall also serve as the Council’s Secretary. Each member shall serve for only one term of two years.  Under Article 24, the Council  shall issue Regulations for the proper implementation of the law whilst previously this power laid with the Minister. To mark further the independence of the Council, the Law now states that the Council shall have its own separate office whilst previously it was  based at  the Ministry of Justice. The Council shall adopt its own Rules of Procedure and shall reach its decision on a majority vote of the members  (with a meetings’ quorum of 3 members). Furthermore the Council shall have its own allocated budget under the National budget which  it shall  utilise independently.

The Council has  statutory power to issue, presumably after full consultation with the Advocates Associations, Regulation covering all aspects of professional Standards, the compliance of which will not only raise standards but will also underpin the disciplinary procedures.  Although it is not stated in the Law,  the Council is a statutory administrative body, and therefore its decisions are subject to judicial review.  This, in my view, imports an obligation on the Council to consult widely with the Advocates’ Associations before it adopts detailed standards and disciplinary procedures.

Another major criticism of 2004 Law was  that, under Article 2(2), no one who is a member of Parliament or a member of local authority or in the cabinet can be given a licence to practise as an advocate.  This understandably drew considerable condemnation from one practising lawyer who was a sitting member of the House of Representatives.  The House of Representatives initially agreed to remove the prohibition, but the amendment was reinserted again after the bill was re-considered again by the House.  

Public service lawyers cannot still be registered as advocates although they  litigate on behalf of the government (and have rights of audience in the courts) and there is therefore a gap on how the professional standards of such in-house lawyers and their legal experience  can be addressed by the Law Officers (principally the Attorney General and the Chief State Counsel) of the government.  Furthermore this Law still only counts the legal experience of previous prosecutors and judges towards their qualification as Advocates when they finish their public service, but it leaves out the increasing number of other in-house public lawyers - an issue that ought to be addressed in the forthcoming law relating to the Office of the  Chief State Counsel (or as he is referred to sometimes, the Solicitor General).

The rest of the Law remains largely the same and the new Law, as passed and signed, is a consolidated version with all the amendments inserted therein.  This is indeed a very welcome practice which we have recommended in the past. The following (old) notes about the Law   are therefore still applicable, but, where necessary, I have inserted any changes.

Advocates undertake all legal work from advice, case preparation through to advocacy at court, but do not deal with matters that fall within the functions of a notary (see below).  There are three practice annual licences (Article 5) issued under this Law to advocates who, unless exempt, must have  passed the Advocates examination and have the following qualifications:

Applicants must be mentally fit, Somaliland citizens and have reached the minimum age of 25 for all three categories of Advocates  (previously Sharia Advocates’ minimum age was 35). There was and is still  a requirement of no criminal convictions within the last 5 years and  applicants must, unless exempted, pass the requisite professional examination (Articles 3 and 4).

The three practice licences are:

a) General Advocate (Article 6) who can practice in all the courts of the land, civil or criminal. Must be a law graduate.  The previous requirement of  5 years experience as a judge at a regional or higher court has been removed from Article 6, but this experience now serves as an exemption to the requisite professional examination.

b) Criminal Bar Advocate (Article 7) who can practice  in the criminal courts at all levels. Must have 5 years experience as a judge, prosecutor or advocate and pass ‘the exam’. It is not clear from Article 7(d) whether this is  different from the professional examination mentioned in Article 3 and 4 of the law

c) Sharia Advocate (Article 8) who can practice only in Sharia suits and/or appeals. Must be a  Sharia graduate or have equivalent knowledge or have worked as a district court judge.

Prior to the new Law, a  Justice Ministry  Ministerial Circular dated 9 April 2012 reminded all the courts and advocates that annual practice licences must be obtained  regularly and that  membership of the parliament or of the local councils or public employment bars anyone from being registered, at the same time,  as a practising advocate. 

FOR MORE INFORMATION ABOUT SOMALILAND ADVOCATES - See  Somaliland Lawyers page

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NOTARIES 

Xeerka Nootoyinka Somaliland - the Somaliland Notaries Law - Law No: 18 of  2001 governs the work of Notaries. Notaries draw up all legal documents including contracts for sale, and various court documents.  A Notary must hold either a law degree or have 5 years legal experience and must be aged 30 years or more. A Notary cannot be an advocate, at the same time. The bulk of the work Notaries undertake relates to the contracts for the transfer of movable and immovable property for which Notaries receive fees set in Article 25 of the Law.

The profession of a Notary is an ancient one and notaries in Civil law countries have much wider roles.  The current Somaliland Law is broadly modelled after the Italian based notaries laws in Somalia.   The main pre 1991 Notaries Laws were as follows:

• The Notaries Law No. 8 of  of 15 February 1961 and the Notaries  Ordinance (Legislative Decree No: 1 of 2 March 1962) - both in Italian language only.
• The Notaries Revision Law No. 7 of 2 February 1986 which permitted the appointment of notaries without examinations (Article 2) and also permitted Lawyers at the Ministry of Justice with Notary experience to resign and practice as Notaries.
• The Notaries Tariffs Decree No. 3 of 15 January 1987 which updated the fees and repealed previous 1972 and 1981 laws listed in Article 13.

FOR MORE INFORMATION ABOUT SOMALILAND NOTARIES - See the Somaliland Notaries Law  Page.

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