The Somali Penal Code, promulgated in early 1962, became
effective on April 3, 1964. It was Somalia's first codification
of laws designed to protect the individual and to ensure the
equitable administration of justice. The basis of the code was
the constitutional premise that the law has supremacy over the
state and its citizens. The code placed responsibility for
determining offenses and punishments on the written law and the
judicial system and excluded many penal sanctions formerly
observed in unwritten customary law. The authorities who drafted
the code, however, did not disregard the people's past reliance
on traditional rules and sanctions. The code contained some of
the authority expressed by customary law and by Islamic, sharia,
or religious law.
The penal laws applied to all nationals, foreigners, and
stateless persons living in Somalia. Courts ruled out ignorance
of the law as a justification for breaking the law or an excuse
for committing an offense, but considered extenuations and
mitigating factors in individual cases. The penal laws prohibited
collective punishment, which was contrary to the traditional
sanctions of diya-paying groups. The penal laws stipulated
that if the offense constituted a violation of the code, the
perpetrator had committed an unlawful act against the state and
was subject to its sanctions. Judicial action under the code,
however, did not rule out the possibility of additional redress
in the form of diya through civil action in the courts.
Siad Barre's regime attacked this tolerance of diya, and
forbade its practice entirely in 1974.
Under the Somali penal code, to be criminally liable a person
must have committed an act or have been guilty of an omission
that caused harm or danger to the person or property of another
or to the state. Further, the offense must have been committed
willfully or as the result of negligence, imprudence, or illegal
behavior. Under Somali penal law, the courts assumed the accused
to be innocent until proved guilty beyond reasonable doubt. In
criminal prosecution, the burden of proof rested with the state.
Penal laws classed offenses as either crimes or
contraventions, the latter being legal violations without
criminal intent. Death by shooting was the only sentence for
serious offenses such as crimes against the state and murder. The
penal law usually prescribed maximum and minimum punishments but
left the actual sentence to the judge's discretion.
The penal laws comprised three categories. The first dealt
with general principles of jurisprudence; the second defined
criminal offenses and prescribed specified punishments; the third
contained sixty-one articles that regulated contraventions of
public order, safety, morality, and health. Penal laws took into
consideration the role of punishment in restoring the offender to
a useful place in society.
The Criminal Procedure Code governed matters associated with
arrest and trial. The code, which conformed to British common
law, prescribed the kinds and jurisdictions of criminal courts,
identified the functions and responsibilities of judicial
officials, outlined the rules of evidence, and regulated the
conduct of trials. Normally, a person could be arrested only if
caught in the act of committing an offense or upon issuance of a
warrant by the proper judicial authority. The code recognized the
writ of habeas corpus. Those arrested had the right to appear
before a judge within twenty-four hours.
As government opposition proliferated in the late 1970s and early 1980s, the
Siad Barre regime increasingly subverted or ignored Somalia's legal system.
By the late 1980s, Somalia had become a police state, with citizens often falling
afoul of the authorities for solely political reasons. Pressure by international
human rights organizations such as Amnesty International and Africa Watch failed
to slow Somalia's descent into lawlessness. After Siad Barre fell from power
in January 1991, the new authorities promised to restore equity to the country's
legal system. Given the many political, economic, and social problems confronting
post-Siad Barre Somalia, however, it appeared unlikely that this goal would
be achieved soon.