The need for a strong independent judicial system in Somalia

After long electoral process held in the entire regions of  Somalia, selective delegates from sub-clans elected members of representatives who in turn in February 2017 members of parliament voted in president Mohamed Abdullahi Mohamed known as Farmaajo who received warm welcome from people across the country.

No sooner of his election than his appointment of his prime minister to complete other executives of the government.

Somali people had strong support for the president hoping to progress the country forward and lead to reach consensus on a political agreement which would result in economic stability, completing federal system and next general election for the citizens to regain their rights to vote in political candidates willing to have goodwill in the society and can realize their visions.

When central government collapsed in early 1990s, every aspect of Somalia’s basic justice system was destroyed. Fortunately local traditional elders, previous transitional and federal authority paid some efforts to establish country judiciary system to be implemented nationwide but partially Somali society has fragile courts working with legal books full of outdated articles on both criminal and civil divisions originating from a centralized authority rule of laws while Somali governmental system turned into a federal judiciary system.

The country has non-provisional constitution that guarantees the independence of the judiciary and establishes a judicial infrastructure. However, formal judiciary system suffer huge corruption and low public trust, while the country took federal system, but laws and procedures applied in Somalia’s judiciary branch are based on former centralized government norms.

By the time of Hassan Sheikh Administration (first non-transitional federal government in Somalia) had ministry of justice which strived to develop courts, lawyers and general attorney office unluckily political crises influenced and saturated all the activities of the then government including building well established high court, independent judicial service commission even though Somalia lower house representatives passed a bill to form the commission.

Somalia government backed by international community established a fundamental justice system, but there is urgent need and strong demand of independent commission. Similarly the constitutional court which is responsible for the constitutional interpretation and the federal courts are expected to spread justice throughout the country.

In Somalia, people from low income household, vulnerable and minority clans very limited financial lack access to justice and are facing challenges to file a case like hiring professional lawyers and expecting judges’ decision based on impartiality free from bribe or other interest.

Somalia has no general universal judicial system but local courts work on a combination of traditional and Islamic laws that constitutes the basic judicial framework. Justice system face challenges and criticism from Shari’a leaders with specific interest in the field of power-sharing which spreads statements showing it is against Shari’a law and created confusion in the minds of the local people who are mostly possess little knowledge on the constitution leading to a decline of public credibility of a regulatory system. Also clannish and nomad culture has huge influence in the implementation of decisions made by the judges and law enforcements which turn down of the morality of the society with on the law setting legal crises identity.

Adding that Somalis have so many questions when it comes to justice transparency and confidence, some parts of the community believe there are huge mismanagement and corruption in the courts and judges’ decision professionalism specifically cases involved venerable individuals or has political influence.

Somalia is planning to hold one person one vote election with multiparty political parties which is more complex than previous elections that can lead the country into political crises and instability if there is no strong independent judicial system.

Few federal state courts have been established in the regional administrations due to several obstacles including Al-shabab challenge, government financial capacity and political interest. Also the courts that have been constructed receive criticism from some of the civil right groups believed to be mostly financed and controlled by the leaders of regional federal member administrations which question the independence of justice to be passed by such courts.

At times political cases are filed in Mogadishu courts which are more critical than ordinary civil issues requiring legal interpretation and fairness of the court decision since allegations of the involvements of political money and influential persons is rife. An example one is that the parliamentary seats dispute and the recent case of the prominent politician and former presidential candidate Abdirahman Abdishakur which the city courts experienced last month. Abdishakur was arrested by government elite security forces in a midnight raid in his residence in Mogadishu, Somalia. The government was severely criticized on their illegal activity by some MPs on executing a dangerous mission without court mandate acting like a predator than a protector. He was later released by a judge in Banadir Regional Court after spending 4 days in a government cell. Thereafter Somali Attorney General appealed against his release the next day remand and Banadir Appeal Court ruled in absentia by restricting his abroad travel  and movement in the country.

Members of civil society and number of political leaders suggested the urgent requirements for amendments made some articles of Somali legal penalty since country system is shifting into a democratic federal state.

While Somalia took federal system which is almost succeeded of erecting five federal member states excluding the self breakaway Somaliland in the northwest of the country, there is no effective function independent judiciary in all federal states except Puntland although it remained nominal institutional structure without reaching the rural towns inhabited by nomadic people.

Also the newly elected president pledged a system transformation within three months when Somalia president was celebrating his first 100 days of achievement noting it’s the end of injustice emanating from the Somali judges system promising essentially reform, but still there is no clear improvement on the sector.

The urgent need for implementing justice system unification between the federal government and the regional member states based on identical standards, procedures, and aggregate custodian it is vital point to consider.

Somalia government and international stakeholders usually focus comprehensively on two factors beside security. First the imperative of creating a conducive electoral environment permitting for holding one person one vote and second is completing the draft constitution that will obviously streamline the quest for amicable, reliable and efficient Somali justice system which is one of the primary factors for Somalia’s peace and stability.

Civil society, human right groups and stakeholders local and international should collaborate on initiating, formulating and public policy to help venerable people find justice and fairness through a panel of judges in Somalia.

Somali parliament also must consider as a priority the formulation of Somalia’s independent commission of judiciary services, constitutional court and completing other laws and regulations remaining to find strong independent justices system.

Hassan Mohamud

Social Analyst 

hmm.abdi@gmail.com

 


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