Somalia Legal Profile

The Somali legal system is mixed, consisting of civil, Sharia and customary law. The Provisional Constitution of the Federal Republic of Somalia defines the hierarchy of laws in Somalia and confirms the role of Islam in the state.

Article 4 states that ‘after the Shari’ah, the Constitution of the Federal Republic of Somalia is the supreme law of the country’.[1] The Constitution also confirms Islam as the state religion and prohibits the propagation of other religions.

Laws which are not compliant with the principles of Sharia cannot be enacted and neither may laws which are contrary to the Constitution.

Puntland also has its own constitution, which is inferior to the Federal Constitution, as does Somaliland.

Somaliland’s Constitution is similar to that of the Federal Government; it also reaffirms the role of Islam, laws contrary to the principles of which cannot to enacted, as well as the supremacy of the Somaliland Constitution.[2] Sharia law governs the areas which fall under al-Shabaab control.

The independence of the judiciary is enshrined by Articles 3 and 106 of the Federal Constitution, Article 97 of the Somaliland Constitution and Article 64 of Puntland’s Constitution.[3] Nevertheless, in the Federal state there is no clear separation of powers and the judiciary barely functions, relying on a combination of secular, customary and Sharia law.

The judiciaries of Puntland and Somaliland also rely on this combination of legal systems.

Whilst their judiciaries function, they are still weak, suffering from interference from their respective executive branches and a lack of expertise in statutory and institutional law.

Throughout Somalia, judicial branches suffer from a lack of territorial penetration, meaning tribal leaders are often a source of judgement.[4]

Corruption is a dominant issue within Somalia, and particularly the legal system. Courts are subject to political and tribal pressures whilst officials tolerate illegal activity in return for bribes.

Indeed, bribery is commonplace in all sectors including government contracts.

Abuse of office and the embezzlement of state funds are also common. Given the levels of corruption within the security and judicial apparatuses, impunity is also widespread and transparency is poor.

The core of civil and commercial law in Federal Somalia and unionist areas is the 1973 Civil Code. The Code governs and defines contracts, their obligations, resolution and nullification.

Further laws include the Labour Code, which governs employer-employee relations, as well as the Penal and Criminal Procedure Codes, which define crimes, their punishments and legal concepts such as presumption of innocence, haebus corpus and rules of evidence.[5]

Somaliland has a number of further key laws governing commercial life. As the draft Commercial Code has yet to have been passed, the dated Credit Instruments Law 1965 is presumed to be in effect.[6]

Furthermore, the Somaliland Foreign Investment Law was implemented to encourage investment and defines procedures and protections for foreign investors. The Somaliland Company Law is also relevant, covering the formation and type of firms, company management and the issue of share capital, amongst other topics.[7]

Somalia is a signatory to the Geneva Conventions, the Climate Change Kyoto Protocol and Paris Agreements.

Somalia is also a member of the Arab League, the African Union, World Health Organisation and International Monetary Fund.

The Provisional Constitution confirms adherence to international law but in reality, the government is in no position to effectively engage with or implement many international treaties or agreements.

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References

[1] https://www.constituteproject.org/constitution/Somalia_2012.pdf?lang=en.

[2] http://www.puntlandgovt.com/puntland-constitution/; http://www.somalilandlaw.com/body_somaliland_constitution.htm.

[3] https://www.constituteproject.org/constitution/Somalia_2012.pdf?lang=en; file:///Users/pladmin/Downloads/SOM88085%20Eng.pdf; http://www.puntlandgovt.com/puntland-constitution/.

[4] https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2016/pdf/BTI_2016_Somalia.pdf.

[5]http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=88091&p_country=SOM&p_count=35&p_classification=01.03&p_classcount=1; http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=91560&p_country=SOM&p_count=35&p_classification=01.04&p_classcount=4.

[6] http://www.somalilandlaw.com/commercial_law.htm.

[7] http://www.somalilandlaw.com/xeerkamaalgashiga_FINAL.pdf; http://www.somalilandlaw.com/somaliland_company_law.html.