Somalia - Legal System

Legal system

At independence, Somalia had four distinct legal traditions: English common law, Italian law, Islamic sharia or religious law, and Somali customary law (traditional rulers and sanctions). The challenge after 1960 was to meld this diverse legal inheritance into one system. During the 1960s, a uniform penal code, a code of criminal court procedures, and a standardized judicial organization were introduced. The Italian system of basing judicial decisions on the application and interpretation of the legal code was retained. The courts were enjoined, however, to apply English common law and doctrines of equity in matters not governed by legislation.

In Italian Somaliland, observance of the sharia had been more common than in British Somaliland, where the application of Islamic law had been limited to cases pertaining to marriage, divorce, family disputes, and inheritance. Qadis (Muslim judges) in British Somaliland also adjudicated customary law in cases such as land tenure disputes and disagreements over the payment of diya or blood compensation. In Italian Somaliland, however, the sharia courts had also settled civil and minor penal matters, and Muslim plaintiffs had a choice of appearing before a secular judge or a qadi. After independence the differences between the two regions were resolved by making the sharia applicable in all civil matters if the dispute arose under that law. Somali customary law was retained for optional application in such matters as land tenure, water and grazing rights, and the payment of diya.

The military junta suspended the constitution of 1961 when it took power in 1969, but it initially respected other sources of law. In 1973 the Siad Barre regime introduced a unified civil code. Its provisions pertaining to inheritance, personal contracts, and water and grazing rights sharply curtailed both the sharia and Somali customary law. Siad Barre's determination to limit the influence of the country's clans was reflected in sections of the code that abolished traditional clan and lineage rights over land, water resources, and grazing. In addition, the new civil code restricted the payment of diya as compensation for death or injury to the victim or close relatives rather than to an entire diya-paying group. A subsequent amendment prohibited the payment of diya entirely.

The attorney general, who was appointed by the minister of justice, was responsible for the observance of the law and prosecution of criminal matters. The attorney general had ten deputies in the capital and several other deputies in the rest of the country. Outside of Mogadishu, the deputies of the attorney general had their offices at the regional and district courts.

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