Law in an Unrecognised State

Peter Melleney and Chloé Barton explain the legal system in Somaliland and training the Attorney General’s Office

Somaliland is a self-declared independent state which is bordered by the Gulf of Aden to the north, Somalia to the East, Ethiopia to the south and west and Djibouti to the north-west. 

It was a British Protectorate until 26 June 1960 when it gained independence. Just five days later it joined the former Italian colony of Somalia to form the Republic of Somalia.

During the 1980s the region experienced extensive human rights abuses under the military regime of Siad Barre, including aerial bombings of the main cities, driving much of the population into neighbouring Ethiopia or further afield for asylum. Following the fall of Siad Barre’s regime in January 1991, Somaliland seceded from Somalia on 18 May 1991 at a congress in Burao, reclaiming its independence and declaring that it was no longer an integral part of Somalia.

Since then Somaliland has enjoyed relative peace and security. In May 2001 the Somaliland Constitution was approved and in 2002 the first local government and parliamentary elections were held, with the first Presidential elections following in 2003. The next round of parliamentary and presidential elections are now expected in 2016. Recognition as an independent state by the international community has however remained, so far, elusive.

The legal landscape

Somaliland has a complex legal landscape, with three systems effectively in operation; the formal court system, customary law and Sharia. The constitution establishes the primacy of Sharia, Article 4 stating that “The laws of the nation shall be grounded on and shall not be contrary to Islamic Sharia”.

The customary system is administered through the traditional clan system, on which Somaliland’s society is based. Often a potential criminal offence will be dealt with by mediation and compensation administered by clan Elders. This process has benefits in promoting reconciliation and, on a practical level, preventing overburdening of a formal court system not yet able to deal with an increased volume of cases. There are matters however which this system is not adept to address, rape cases being the most concerning example as discussed below.

Criminal law, administered through a system of District, Regional and Appeal courts, reflects Somaliland’s history. The Criminal Procedure Code 1965 has its origins in the Indian Evidence Act 1872 and contains concepts familiar to those practising in a common law jurisdiction such as the burden and standard of proof and rules of evidence, albeit it concise and without development in the subsequent decades. The Penal Code 1962 in contrast is based on the Italian Penal Code 1930.

“No one learns as much about a subject as one who is forced to teach it.” (Peter F Drucker)

In December 2014 Peter Melleney travelled to Hargeisa to develop a course of training for the Attorney General’s Office (AGO). In contrast with the English Bar there are no independent practitioners who both prosecute and defend; all prosecutors are employed by the AGO. The priority for the Attorney General was law of evidence, so a course was designed for delivery to approximately 40 prosecutors.

Training began in January 2015, delivered by the authors and David Wood. As well as prosecutors from Hargeisa approximately 20 from the regions travelled to the capital to take part. The regions of Somaliland suffer from often being excluded from training NGOs provide and it was important to include the regional offices in order to instigate consistent improvements. The course included classes on oral, circumstantial, documentary, identification, character and expert evidence as well as practical advocacy exercises on witness handling. Although recently appointed prosecutors have law degrees there is an absence of any vocational legal training in Somaliland. Training on juvenile justice and Sexual Gender Based Violence, two very challenging issues as discussed below, was also delivered to the prosecutors by Grace Pelly, Horizon’s senior legal advisor and two consultants. Following meetings with the Somaliland Lawyers Association and the Somaliland Women Lawyers Association, a three-day course of training was also delivered to approximately 30 defence lawyers. The training was well received, with one of the participants describing the course as “a golden opportunity”.

Joint head of chambers, Recorder Nick Rhodes QC, assisted by Alexander dos Santos and Andrew Turnbull, then delivered “Judge Craft Training” in March 2015, covering judicial skills and ethics, disclosure, case management and admissibility of evidence. 24 newly trained judges had been selected by the High Judicial Council to participate in the training.

A further course of training on case analysis was delivered in May 2015 by the authors, covering identifying offences, elements of the offence, multiple charging, case theory and case development. Thankfully the 30 plus degree heat didn’t deter the participants from engaging in lively discussion.

Training will continue with the next course scheduled to start in summer 2015 when Recorder David Batcup will train judges on handling juvenile justice issues.

Despite a hectic six day working week, the trainers found time to enjoy some of the sights that Hargeisa has to offer. This included a trip to Laas Geel, a series of truly stunning rock paintings that are estimated to originate from around 7000 BCE and which are surely deserving of UNESCO World Heritage Site recognition. There was also an early morning visit to the camel market, dinner at the local cultural centre (including tasting the aforementioned camels) and a historical theatre date to watch a production of Hamlet by Shakespeare’s Globe in their two year tour of every country in the world – the first play performed in Somaliland in 23 years.

Ongoing challenges

In the developing formal justice system there remain many challenges to address. One of the most significant is the current lack of service of evidence in a case. It is not unusual, indeed it is normal practice, for defence lawyers to attend court for trial having only seen a charge sheet, which seems difficult to imagine from the perspective of an English lawyer. The charge sheet includes, under Article 71 of the Civil Procedure Code, basic details about the date of the offence and the names of the witnesses. This is a clear barrier to a fair trial by international standards.

There is a recognised need for improvement in cases involving juveniles and sexual and gender based violence (SGBV). Somaliland has an impressive Juvenile Justice Law that places the child at the centre of all decision making, but the lack of resources and dedicated facilities for the detention or rehabilitation of children means that at present the law is incapable of full and proper implementation.

Often in cases of SGBV the common practice is to allow the customary system to formulate an agreement as opposed to using the formal system. This is despite a directive from the AG stating that rape cases should not be allowed to settle outside court and should continue through the formal system to ensure justice is served. When rape cases remain in the formal system case reviews have found that victims are forced to relive their account numerous times in the lead up to the trial and during it, and that without a medical report that confirms there were injuries to the victim convictions are extremely rare. At the conclusion of one rape prosecution the complainant was convicted of obscene acts even though they had not been either charged or represented.

Despite these sensitive problems the feelings towards the future of the formal system from the perspective of its lawyers remains optimistic. As a sign at the entrance to the University of Hargeisa proclaims, the road to success is always under construction.

One [challenge] is the current lack of service of evidence in a case. It is not unusual, indeed it is normal practice, for defence lawyers to attend court for trial having only seen a charge sheet...

Since late 2014 members of Charter Chambers have been conducting training for the justice sector in Somaliland. The work is being conducted for the Horizon Institute, a consultancy firm set up by Rakiya Omaar which helps communities transition from fragility and underdevelopment to resilience and stability. Horizon has funding from the Department of International Development to implement a Somaliland Justice Sector Project (SJSP). In addition to supporting the formal justice institutions, the Ministry of Justice, the Attorney General’s Office and the Law Reform Commission, Horizon is also promoting the formation of a Bar association, providing training to defence lawyers and assessing legal aid provision. Charter member, Grace Pelly, is employed as Horizon’s senior legal adviser working on the SJSP.

Contributors Peter Melleney and Chloé Barton, Charter Chambers

Issue: 
Author details: 
Peter Melleney

Peter practises in crime, healthcare regulation and public law. He holds an MA in human rights from the University of London.

Chloé Barton

Chloé practises in healthcare regulation and crime. For the past three years she has been instructed by the SFO as LPP counsel.