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The Somaliland Supreme (& Constitutional) Court      

Introduction

(For a short overview of the Somaliland Courts including the Supreme Court, see: The Somaliland Judicial System - Overview)

Background                                                                      

The highest court in the independent State of Somaliland in 1960 was the High Court in Hargeisa.  Section 39 of the first Somaliland Constitution gave the court both original and appellate jurisdiction.  Prior to independence, decisions of the High Court in Hargeisa could be appealed to the Court of Appeal for Eastern Africa in Nairobi (Appeal to the Court of Appeal Ordinance No: 24 of 1950 as amended by Ordinance No:14 of 1957) and then, in appropriate cases to the Judicial Committee of the Privy Council (JCPC) in London (Eastern African (Appeal to Privy Council) Order-in-Council 1951). 

On the independence of the State of Somaliland on 26 June 1960, the appeals to the Eastern African Court of Appeal and the JCPC in London were suspended and all appeals pending or part heard on the date of independence abated until the union with Somalia was effected by a treaty of union and the new Supreme Court of the united state mentioned in Article 94 of the Constitution of the new State is established. Section 12(3) of the Union of Somaliland and Somalia Law (Law No. 1 of 1960) passed by the Somaliland Legislature on 27 June 1960 confirmed that the new Supreme Court shall have ‘appellate jurisdiction in relation to decisions of the Courts now constituted and which will continue to subsist’ in the territory of Somaliland which to be referred to as ‘the Northern Region’ (not regions) of the new united state of the Somali Republic.

As the the details of the exercise of this appellate procedures from the Somaliland High Court were not set out in any law, it was only when a law was passed (Law No. 18 of 24 May 1961) that this was made clear that appeals from the High Court shall be heard by the new Supreme Court which, when considering such (former Somaliland) High Court appeals shall include at least one judge who ‘must be learned in the laws of the Northern Region(s)’   (Contini  P, The Somali Republic - An Experiment in Legal Integration, Frank Cass & Co. Ltd 1969, p. 33). (Incidentally, the reference to ‘regions’ by then was that the previous 6 Principal Districts of the independent State of Somaliland were grouped into two Regions of Hargeisa and Burao and were called the Northern Regions, whilst the former Somalian six regions remained as they were and were referred to as the Southern Regions). In February 1962, Dr. Haji Noor Muhammad, was appointed as the first Supreme Court judge conversant with Somaliland laws. 

The first law that dealt with the courts of the Somali Republic was the 1962 Organisation of the Judiciary Law which set up a Supreme Court, Court of Appeal (of the regions), Regional Courts and District Courts throughout the country. The Supreme Court could also act, with additional appointed members (i.e  two members appointed for a three years term by the President and two members elected for the same period by the National Assembly) as a Constitutional Court and also sometimes as a High Court of Justice (sitting with six additional members) to deal with impeachment issues (Art. 6). Under Art. 33, the Law made it clear that until new procedures can be adopted, the courts in the Northern Regions shall continue to apply the Somaliland Criminal Procedure Ordinance  and the Somaliland Code of Civil Procedure. No Constitutional Court was set up before 1969 when the Siyad Barre military coup abrogated the 1960 Constitution.  The 1962 Judiciary Law was repealed  by Siyad Barre’s 1974 Organisation of the Judiciary Law (Law No: 34 of 22 September 1974) although the basic court structure was retained in the new Law. Even the Dictaorship 1979 Constitution also proposed the establishment of a Constitutional Court (Art. 107), unsurprisingly no such court was ever established. This period of 1969 to 1990 was also marked by the proliferation of special Security and military courts which usurped many of the powers of the ordinary courts. 

During the pre-1969 democratic period, the issue of what do with constitutional cases, in the absence of a Constitutional Court was considered by the then Supreme Court. For example, earlier, in the cases of the Somali National Congress v the State (Supreme Court Full Bench, Judgment of November 5, 1963) and Ahmed Muddei Hussen and others v. The Minister of Interior (Supreme Court Full Bench, Judgement of March 7, 1964) the Supreme Court held that, in the absence of an actually functioning Constitutional Court, the Supreme Court was automatically competent to decide a constitutional question 'subject to the condition that its judgment will have only a limited effect, and not a general one as would be the case if the judgments were of the Supreme Court constituted as the Constitutional Court' (see Contini, p. 41).   But, a year later, in the case of  Dr. Mohamed Farah Siad and others v the Prime Minister (Supreme Court Full Bench, Judgment of December 16, 1965) the Supreme Court, under the then new Presidency of Dr. Aldo Peronaci, reversed its previous decisions and held that under the 1960 Constitution and the 1962 Law on the  Organisation of the Judiciary, the Constitutional Court had been given exclusive jurisdiction on constitutional matters, and thus “implicitly sanctioning the incompetence of the Supreme Court in this respect” (Contini, p. 41). The Supreme Court then declared it had no jurisdiction to deal with the constitutional questions raised in this case, and then referred it to the Constitutional Court. 

After reassertion of its sovereignty in May 1991, Art. 21 of the Somaliland National Charter of 1993, which came into force on 3 May 1993, confirmed that the Somaliland Supreme Court was the highest judicial organ, which shall sit as the Constitutional Court when dealing with any constitutional disputes. The Charter also confirmed that anyone who considered that a law or a public administrative decision affected seriously his rights may challenge them at the Supreme Court (as the Administrative Court) - Arts 19 & 26. The Charter also confirmed the independence of the judiciary and stated unequivocally that no decision of a court may be reviewed by anyone other than a higher court (Article 23(3)).  The Supreme Court (and Constitutional Court) was also given another function under Article 28 of the Charter, i.e that of sitting as a High Court of Justice when dealing with issues of impeachment of the President, the Vice-President or the Ministers.  In this latter capacity, though, the justices of the Supreme Court shall sit with four members appointed by the two Houses of Parliament.   The rest of the Somaliland judiciary was modelled after the 1962 Organisation of Judiciary Law.

This scheme of the Somaliland judiciary was set out in the 1997 Somaliland Interim Constitution, and then of course in the final and current Somaliland Constitution (Arts. 97 to 106) adopted after a national referendum in May 2001.  The current law that governs the structure of the judiciary is the  Somaliland Organisation of the Judiciary Law - Law No. 24(2003, as amended) - (60 articles version). Article 5 of this OJ Law lists the courts of the land comprehensively in one article, as being (other than the military courts) the District  and the Regional Courts as courts of first instance, the Courts of Appeal and three other variants of the Supreme Court, i.e

• the Supreme Court as the final appellate court and also dealing with administrative cases and any other issues assigned to by law, such as complaints relating national elections (Art. 10 of the OJ law) ;
• The Constitutional Court, which is the Supreme Court sitting in that capacity and dealing with constitutional issues and not (unlike the the pre 1991 Somali Republic models) not requiring any additional appointees (Arts. 14 and 15 of the OJLaw); and
• The High Court of Justice, which again some of the Supreme Court justices (i.e 4 and the Chairman), but this time also sitting with 4 other members appointed by the tow Houses of Parliament, and dealing with impeachment proceedings against members of the two Houses and Ministers (Art. 16 of the OJ Law), but NOT the impeachment of the President or Vice-President for which there are separate procedures .

We shall consider the Supreme Court and the Constitutional Court in more detail below.

To be completed shortly

The Somaliland Constitutional Court

To be completed

Constitutional Court Decisions

Recent Decisions

• SCC Decision 2/2015 of 18 August 2015 on the Dispute about the date of the forthcoming elections (in Somali with added footnotes on the quoted legal provisions).

Initial Comments on this decision:

A ‘bitter pill’ for the immediate ailment but no cure

The UCID Party leader has described the Constitutional Court decision, of 18 August 2015, a ‘bitter pill’ that they have to swallow, but his party and Wadani (as well as the Gov’t Party, Kulmiye) have accepted the decision. The decision (and it was indeed a decision and NOT an advisory opinion) has ended the controversy about the date of the forthcoming elections and, to that extent, it has brought finality to this specific issue. Unfortunately, the decision has not addressed, at all, the underlying issue of the legality or otherwise of the decision of the House of Elders (HoE) to extend the terms of both the President, the House of Representatives  and the HoE itself. This was primarily  because  the Court was asked by the President to advise on or interpret (not adjudicate, by the way) the contrasting election date set out in the HoE  Resolution dated 14 May 2015 (i.e one month before the extension date the HoE set) on the one hand; and the different, but earlier election date  agreed by the three political parties (in the presence of the Vice-President) on 27 May 2015.

The Court consulted the political parties and some of the members of the civil society but although this issue is a controversial one and involved an underlying dispute about the constitutional legality and/or correctness of the HoE decision, there is nothing in the court decision which sets out whether or not any arguments  against the HoE decision amply explained in the HoE resolution were put to the Court and if so, what they were. Absent any such (recorded) submissions and in view of the fact that the Political parties’ agreement itself starts with the expression of their willingness to respect the resolution of the HOE, as constitutional body,  to extend the terms of the President, Vice-President and the the HoE, the Court can be excused for deciding to concentrate on simply answering the narrow question asked by the President and decide on which of the two election dates is more in line with the Constitution. Reduced to this narrow issue, the decision was a forgone conclusion as the constitution (Arts. 82 and 42) does state that the elections will be held a month before the end of the terms of office of the President and of the HoR, and with out addressing the legality or correctness of the HoE decision, in the first place, there can be no other answer to this narrow question.

Nonetheless the Court did go a bit further than ‘yes’ to one election date  and ‘no’ to the other by pronouncing that “the 5 year term after an election of the President, Vice-President and the HoR and the extension of their terms  after the end of their 5 year elected terms by the House of Elders in accordance with Article 83(5) and Article 42(3) of the Constitution of the RoS  are the same and have the same legal validity”.  This is, of course a correct statement of what the constitution says,  but it does not address the question that has  been raised since these ‘contingencies’ clauses were first used in 2002, which is that the HoE has utilised them improperly and contrary to their letter and spirit in situations where the ‘contingencies’ did not arise at all and were not the reasons for the delays in the elections. So this was indeed a lost opportunity for the Court to examine and interpret the term extension clauses which are all predicated on the happening of specified “contingencies” that were so specifically confirmed by the National Electoral Commission this year as  not being the reasons why these current elections were delayed.

Had the Court quoted and interpreted  these ‘contingencies’ clauses as having not been applied properly, it would not have followed automatically that all the previous HoE resolved extension would become null and void as it was open to the Court to choose a practical solution for this current extension and then ask parliament to come up with statutory changes that can deal with future extensions that do not relate to the happening of the contingencies defined in the Constitution. 

This decision, therefore,  may have been a ‘bitter pill’ for the immediate ailment, but sadly it has not provided a cure for the sickness of unconstitutional HoE resolved term extensions, the top ones of which are their own term extensions which are not even covered by the constitutional clauses.  The HoE own term extension did not concern this Court in this instance but it is still a live issue which may well come in front of them. The decision will also embolden the HoE in the future.  

I  shall expand on these points later in a forthcoming article and call for statutory change to deal with any future short term extensions necessitated by delays certified by the National Electoral Commission as having nothing to do with the happening of the constitutionally defined  ‘contingencies’ that  allow the House of Elders to reach a resolution on the period when such contingencies, when they do happen, can be overcome.

It also appears to me that this decision  raises the need for the establishment  of the Rules of the Somaliland Constitutional Court. The Somaliland Court is a mixture of the Kelsenian (European) type of centralised consideration of constitutional  adjudication and a US Supreme Court type of court which  is the apex court for a ‘diffused’ consideration of constitutional matters based on disputes/cases only. Whilst the Somaliland Court will interpret constitutional questions asked by lower courts dealing with specific cases before them, as Kelsenian constitutional courts do, whether it should render advisory opinions and, if so, to whom, when and how,  is not so clear cut and should be addressed in new Rules consistent with the Constitution. The new Chief Justice and the Court have shown, so far, great promise in tackling both constitutional and other  cases in the courts and it is good to see the constitutional court waking up from its long slumber.

- Editor 31/08/2015  

• SCC Decision 1/2015 of 23 July 2015 on the Rights of Opposition of Political Parties (in Somali with added footnotes on the quoted legal provisions).

 

Previous Decisions:

    To follow.