|
Somalia 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 (see Glossary)
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.
|
