This is the text of a paper delivered at the Conference on Integration of Customary and Modern Legal Systems held in Ibadan, Nigeria, August 24-29, 1964. The subject of this paper is being expanded into a book.
By Paolo Contini*
The Somali Republic was born on July 1, 1960. On that date, the five days old independent State of Somaliland, formerly a British Protectorate, merged with the former United Nations Trust Territory of Somalia under Italian administration, which achieved independence on the same day. The new State was defined as “an independent, democratic, and unitary Republic.”[1]
In effect, however, in the beginning, the only unitary elements were at the top of the State pyramid: there was a single President of the Republic; a National Assembly comprising the former Legislative Assemblies of Somaliland and Somalia; a Cabinet including Ministers from the two parts of the territory; and a Supreme Court with jurisdiction over the whole country. But most of the other elements were still separate: there were two different judicial systems; different currencies; different organization and conditions of service for the army, the police, and the civil service; different taxation and customs; different governmental institutions, both at the central and local level; different educational systems. While Shari’a law was basically the same throughout the country, the general law applied in the two parts of the Republic was widely different. The Northern Regions followed the pattern of British dependencies in East Africa, and the law was a mixture of English common and statute law, Indian statutes, and locally enacted ordinances; in the Southern Regions, it was a mixture of Italian law, colonial legislation and enactments issued during the ten-year Trust Administration.
The legal integration of the Northern and Southern Regions was a complex and challenging task.
It was decided, as a first step, that the legislation in force in the two parts of the Republic immediately before the Union would remain in effect until superseded by integrated laws.[2] This was necessary to avoid a legal vacuum and give the new State time to proceed to an orderly unification.
In the first years of the life of the Somali Republic, considerable progress has been made in the integration of the laws and institutions, although much still remains to be done. Space does not permit a detailed description of the major integrated laws enacted in the Somali Republic. Accordingly, this paper will be confined to a brief discussion of some concrete aspects of the integration process.
I. Methodology
Shortly after independence, a Consultative Commission for Integration was established[3] to assist the Government in the preparation of draft laws for the integration of the legislation and institutions of the two parts of the country. The Commission includes lawyers and judges trained in Italian law, lawyers trained in the Anglo-Saxon legal system, and Somali officials and judges trained in Islamic and customary law.[4]
Although most of the unified legislation in the last four years has been drafted by the Integration Commission, in some instances other procedures have been followed. For example, the National Assembly delegated to the Government the power to enact the penal code and the code of criminal procedure and created a Special Commission for the purpose of preparing them.[5] A peculiar aspect of this procedure is that the recommendations of the Special Commission – whose membership was about evenly divided between deputies (members of the National Assembly) and legal experts – were made binding on the Government. Thus, in effect, the Assembly delegated legislative powers to a mixed body of deputies and legal technicians, a solution which did not prove wholly satisfactory.
In another case – the preparation of foreign trade and foreign exchange legislation – the work was done by an ad hoc commission with the participation of experts from the International Monetary Fund.
Occasionally, an individual legal expert would be requested by the Government to prepare a draft law, and in very few cases, Bills originated within the Assembly.
It was realized from the beginning that the group of lawyers in the Integration Commission must not settle in a legal ivory tower, or impart advice distilled from pure legal theory. Had they remained aloof from the mainstream of a developing society, their effectiveness would have been sharply reduced.
Accordingly, the Commission has made it a constant practice to prepare draft laws in close collaboration with representatives of the Ministries concerned. Thus the finished product is usually accepted by the responsible Minister who presents it to the Council of Ministers for approval and then to the National Assembly.
In Somalia, one of the most difficult problems in legislative drafting is language. This is because there are not one, but three written languages, none of which is Somali. All Somalis speak the same tongue, with minor differences in dialect, but no decision has yet been made on the official script.
The absence of an official written language creates serious complications. In the National Assembly deputies make speeches in Somali, which are interpreted into Italian, the language used in the Assembly’s verbatim records. Draft laws have to be submitted to the Assembly in three languages, Italian for the Southern deputies, English for the Northern deputies, and Arabic for those not sufficiently familiar with either. All legislation is published in the Official Bulletin in Italian and English, which have equal status even though neither has ever been formally recognized as “official.”
The laws drafted by the Integration Commission are always prepared in English and Italian. When a draft law has been completed, the work is only half done, as the translation into the other language is a long, complex operation.
Translating a legislative text is a very difficult art. Reading English versions of Italian codes or laws done before the independence of Somalia by highly qualified translators, we have often found expressions and concepts either meaningless or misleading in English legal terminology. This is because even the best translator normally is not a lawyer, and therefore is unfamiliar with technical legal expressions.
At the same time, the use of two languages in legislative drafting has some advantages. In the Integration Commission, all translations are reviewed, word by word, by two lawyers familiar with both languages. In the process, the revisers often find obscurities and imperfections in the original version, and the final draft is then improved.
Bilingual legislation also tends to liberate the draftsman from unnecessary and sometimes unintelligible legalistic jargon. Legislative texts are often burdened with verbiage accepted and perpetuated uncritically because of long usage. We soon discovered that those expressions were untranslatable or sounded awkward in the other language. Thus they were eliminated, to the benefit of clarity.
Immediately after the union of the two territories, it was necessary to decide on the order of priority to be followed in the process of legislative integration. A work program was approved by the Government and was generally adhered to.
Since all legislation and institutions had to be integrated, the program had to be conceived almost as if a new State were being built ab initio.
One of the first things to do was defining who are “the people” under the Constitution, i.e., who is a Somali citizen.[6]
The two major areas in which laws were needed as early as possible were the State structure and the economic life of the country.
In the first four years, the basic elements of a unified State have been established.
The two fundamental enactments relating to the executive branch are the law on the organization of the Government[7] and the law on local administrations.[8] The civil service law lays down the rules governing the conditions of service of those who keep the government machinery running.[9] The financial and accounting procedures of the State have been unified.[10] The public order law[11] establishes the powers of the police and other authorities in the protection of public order and security, and defines the limits of such powers. The Somaliland scouts of the former Protectorate and the army of the former Trust Territory have been merged into a National Army, and the police forces have also been unified.[12]
As to the legislative branch, the procedures for electing the representatives of the people in the National Assembly have been fixed by the political elections law.[13]
The integration of the judicial branch has been effected by the law on the organization of the judiciary[14] and the establishment of a military tribunal.[15] In the field of criminal law the integration process has been completed by the new penal code,[16] code of criminal procedure,[17] military penal code[18] and military criminal procedure code.[19]
In the economic sphere, a unified currency[20] and banking system[21] have been established, and a uniform regulation of foreign trade and foreign exchange transactions[22] has been instituted.
In the fiscal area, income tax, which was in force only in the Southern Regions, has been extended to the whole Republic.[23] For almost three years after independence, the customs duties in the Northern Regions continued to be substantially lower than those in the Southern Regions. Despite some resistance, they have now been unified.[24] The integration of other central and local taxes is in progress.
There are some vital aspects of the economy which are still to be integrated, such as contracts, negotiable instruments, companies, copyright, patents, and trademarks.
There has been the least amount of codification in the area governed primarily by customary law. For example, no attempt has been made to codify the law of personal status. Studies are currently being made of local customs regarding land tenure and the use of water. Any attempt to legislate in those matters should be made only with full awareness of the social aspects of the problem.
Dr. Keuning, in his interesting paper on law and courts in Africa, has rightly warned against the tendency of some “legal engineers” to extend unduly the area of statutory law, often disregarding the realities of deeply rooted traditions. Although on some occasions unrealistic deadlines have been set,[25] the Somali legislator seems to have generally escaped the temptation to overcodify.
II. Interaction of Different Legal Systems in Somali Legislation
Somalia presents the legal draftsman with an unusual laboratory of applied comparative law. In a country where three legal systems coexist, the “integrator” should: first, make an objective analysis of a given legal concept under English, Italian and, where necessary, Islamic law; second, choose the solution most suitable to local conditions, without any preconceived notion as to the superiority of one or the other jurisprudence.
I shall try to illustrate with some examples the interaction of different legal systems in Somali legislation.
The form of legislative acts follows the Italian pattern, as prescribed in the Constitution.[26] Thus there are no ordinances, statutes, acts or orders, but laws, legislative decrees, decree-laws, decrees and regulations.
The reception of Italian legal concepts is especially noticeable in the Somali Penal Code. For example, Chapter IV, entitled “The Circumstances of the Offence” lists the aggravating and extenuating circumstances applicable to any criminal offence. In each case, the judge must determine whether a particular aggravating circumstance (such as having acted for abject or futile motives) or extenuating circumstance (such as having acted for motives having a particular moral or social value) is applicable to the crime committed. This is different from the Indian Penal Code (which was in force in the Northern Regions), where the aggravating or extenuating circumstances applicable to an offence are specified in the section devoted to it; thus the provisions relating to each crime are self-contained, which makes it somewhat easier for the judge to apply the proper sanction.
As in the Italian Penal Code, the Somali Penal Code frequently prescribes the maximum and minimum punishment for a given offence. Thus the judge is given a narrower discretion than in the Indian Penal Code, where no minimum punishment is specified.
The Code of Criminal Procedure has been substantially influenced by English or Indian law. For example, the rules of evidence were taken, with a few changes, from the Indian Evidence Act. The writ of habeas corpus, unknown in the former Italian territory, has been introduced in the unified criminal procedure.
On the other hand, certain provisions of the Code of Criminal Procedure derive from Italian law. For instance, in the course of a criminal proceeding, the injured party (“parte civile” in Italian, or “partie civile” in French law) may petition the court for the recovery of civil damages arising from the offence committed. If the accused is found guilty, the court, in addition to pronouncing the sentence, must decide upon the civil claim brought by the injured party. This joinder of criminal and civil proceedings, unknown in Anglo-Saxon law, makes it unnecessary for the injured party to bring a separate civil action and speeds up the judicial settlement of the civil as well as the penal consequences of a criminal offence.
Some provisions of the Somali Penal Code are influenced by Islamic or customary law. An example is the prohibition to drink alcoholic beverages, applicable to all Somali citizens and foreign Muslims.[27] Another relates to the crime of murder, which is punished with death,[28] except that, where the crime is committed by a parent and the victim is subject to his parental authority, the punishment is reduced from death to imprisonment from ten to fifteen years.[29]
This provision supersedes a similar clause contained in a short-lived homicide law,[30] which provided that where murder is committed by an ascendant, the punishment is reduced from death to imprisonment from ten to fifteen years. This reduction of the punishment benefited not only a parent, but any ascendant, and applied to any descendant, regardless of age or social status. Such a concept, deriving from Islamic law, was at variance with the rule of Somali customary law that neither parricide nor the murder of a child by his father is punishable. The reason for this rule is that the right of vengeance does not apply between members of the same group.[31]
During the preparation of the penal code the view prevailed that, although the reduction in punishment could not be eliminated, it should be restricted to cases where the victim is a child subject to the offender’s parental authority. The result appears to be a combination of the Roman law jus vitae necisque and the Islamic law principle that the law of talion is not applicable to the premeditated homicide of a descendant committed by an ascendant on the ground that the offender’s social status is higher than the victim’s.[32]
The Somali legislation contains also provisions alien to the Italian as well as the English legal systems, and reflecting the conditions of an essentially tribal and nomadic society. It occurs not infrequently, especially among nomads, that the wounding or killing of a member of an ethnic group may cause reprisals by the injured group against the offender’s, leading to tribal warfare. Payment of the “dia” or blood-money is the normal device for avoiding clashes and bloodshed. The amount of the “dia” – 100 camels for the life of a man, 50 for the life of a woman, and a scale in proportion to the seriousness of the injury – may be agreed upon between the two ethnic groups or fixed as compensation by the court.
Occasionally, however, the group to which the offender belongs removes its livestock to distant places so as to avoid paying “dia.” This is bound to bring about reprisals and bloodshed. To prevent the disappearance of the animals and its consequences, the public order law of 1963 provides[33] that where, following the commission of a crime against the life or safety of a person, there is reason to believe that acts of retaliation or vengeance will be committed by a person or group of persons, or that a serious breach of the peace will occur, the police or other public order authority may order the sequestration of animals or other property belonging to the persons who are presumably liable to pay compensation. Being reassured that the animals are in safe hands, the injured group is less likely to resort to violence.
III. Integration of the Judicial System
Unification of Shariatic and Non-Shariatic Courts
Until the integration of the judiciary,[34] there were separate Shariatic and non-Shariatic courts both in the Northern and Southern Regions.[35] Perhaps the major problem in the integration of the judiciary was whether the dual system should be abolished.
Those in favor of preserving the dichotomy argued that only Kadis, who had the necessary specialized knowledge, should sit as judges on Shariatic matters. They also resisted unification on the ground that for some years in Somalia there will still be foreign non-Muslim judges who should not decide on Shariatic affairs.
The supporters of unification, on the other hand, stressed that the abolition of the dual system would contribute to the development of national consciousness; furthermore, the merger of the two types of courts would require the Kadis to learn State law and the lay judges to learn the Shari’a; a class of judges familiar with both types of law would then be formed.
In the end, the unitary trend prevailed and the Kadis’ Courts were abolished. The integrated law on the organization of the judiciary provides that justice is administered by District Courts, Regional Courts, Courts of Appeal and the Supreme Court.
Organization of the judiciary
The District Court has a Civil Section and a Criminal Section. The Civil Section has jurisdiction “over controversies where the cause of action has arisen under the Shari’a law or customary law and any other civil controversy where the value of the subject-matter does not exceed 3,000 Somali Shillings.”[36] The Criminal Section has jurisdiction with respect to offences punishable with imprisonment not exceeding three years or fine not exceeding 3,000 shillings, or both.
The abolition of the Kadis’ Courts was a bold move. It was made even bolder by the abolition of the system previously prevailing in both parts of the Republic, whereby District Commissioners, in addition to their executive powers, had been given judicial powers as District Judges.[37] Under the new law, only members of the judiciary are allowed to exercise judicial functions.
The goal of these innovations is to create a class of judges qualified in all aspects of the law, Shariatic and customary law, as well as statutory civil and criminal law. Although a concerted training effort is currently being made, there is still a serious shortage of qualified judges. For the present, most of the former Kadis have become District Judges and serve in the Civil Section of the District Courts, dealing primarily with Shariatic and customary law matters. Lay judges have also been appointed as District Judges, and deal mostly with “other civil controversies” and criminal cases. In order to avoid burdening District Judges with excessively complicated matters, the law authorizes the President of the Court of Appeal to transfer a civil case to the Regional Court, where the judges are better qualified.
The Regional Court has no appellate jurisdiction and consists of a General Section and an Assize Section.[38] In the General Section, as in the District Court, cases are heard by a single judge. In civil matters, the General Section has jurisdiction over controversies where the value exceeds 3,000 shillings, except those governed by Shariatic or customary law. In criminal matters, it has jurisdiction with respect to offences more serious than those dealt with by the District Court but less than those within the jurisdiction of the Assize Section. The Assize Section deals with crimes punishable with death or imprisonment for not less than ten years.
The question of the role of the assessors in assize proceedings gave rise to an interesting debate during the preparation of the law. Although assessors existed in both parts of the Republic, their role was basically different. In the Northern Regions, in conformity with the British system, assessors were generally persons familiar with local customs who assisted the judge in an advisory capacity.[39] In the South, on the other hand, the assessors were part of the Bench, similar to the “popular judges” in Italy who participate in the decision on both questions of fact and law.
The Assize Court in the former Trust Territory consisted of the Regional Judge as President and six assessors; the Assize Court of Appeal had the same number of assessors and was presided by the Judge of Appeal.[40]
The advantages and disadvantages of the two systems were discussed at length. Those accustomed to the Northern system argued that while assessors might have performed a useful function in the past as native advisers to foreign judges on local customs, the gradual somalisation of the judiciary greatly reduced their usefulness. Furthermore, it was said, the experience with assessors in the former Protectorate was not very satisfactory: it frequently happened that the assessors, being motivated by personal or group loyalty, would recommend the acquittal of the accused, and the judge would have to disregard their advice. The fear was expressed that if the assessors were given full judicial powers and outnumbered the professional judges, the administration of justice would suffer. It was concluded that the assessors should either be abolished or retained only in an advisory capacity.
The opposite view held that the system of assessors prevailing in the Southern Regions had been embodied in Article 95 of the Somali Constitution providing that “the people shall participate directly in assize proceedings in the manner prescribed by law.” The intent of the draftsmen of the Constitution and of the Constituent Assembly was that the Somali Republic should continue the system of assessors which had been satisfactorily applied in the former Trust Territory since 1956. To reduce the role of the assessors would be inconsistent with the Constitution and a retrograde step.
In the end, a compromise solution was adopted. The assessors now participate in the decision on questions of fact, but it is for the judge to decide on questions of law and impose the punishment. Thus, except for sitting on the Bench, in the integrated system the assessors perform a role equivalent to that of jurors in a jury trial. In addition, the number of assessors was reduced from six to two in the Regional Court, and three in the Court of Appeal.
The Court of Appeal has a General Appellate Section, which hears appeals against judgments of the District Court and the General Section of the Regional Court, and an Assize Appellate Section which hears appeals against judgments of the Assize Section of the Regional Court.
The Supreme Court has its seat in Mogadiscio and consists of a President, a Vice-President, and four other judges. A Division Bench of three judges has appellate jurisdiction in civil matters, appellate and revisionary jurisdiction in criminal matters, and original jurisdiction in administrative and accounting matters. A full Bench of five judges decides on petitions challenging the qualifications of deputies elected to the National Assembly, controversies relating to conflict of jurisdiction among judicial organs, and other matters considered by the President of the Court to be of particular importance.
Law administered by courts
The extent of the application of the Shari’a law was another controversial issue. In the Northern Regions Shari’a law was applied by the Kadis’ Courts in all matters regarding marriage, divorce, family relationship, “wakf,” gift, succession and wills.[41] In the Southern Regions the application of Shari’a was governed by rather complicated provisions,[42] whereby the Kadis had exclusive jurisdiction in matters of personal status, family law and succession, and any other controversy between Muslims, except where the plaintiff chose to submit to the jurisdiction of the Regional Judge. It was also provided that the Regional Judge, who applied Italian civil law, had exclusive jurisdiction over controversies based on a written document and those where “it appears that the juridical relationship has arisen or is governed by formalities different from those of the Islamic or customary law.”
In view of the differences in the existing laws of the Northern and Southern Regions, it was necessary to find a solution applicable to the whole Republic. One view was that the application of Shari’a should not be in any way limited or restricted; the other view was that Shari’a should be applied only in matters of personal status and the parties should be given a choice of law.
After a lengthy discussion, the following formulation was adopted:
Subject to the provisions of the Constitution and this law, the courts shall apply:
(a) the Shariat law or customary law in civil controversies where the cause of action has arisen under the said law;
(b) statutory law in all other matters.[43]
It has been said[44] that, while in other Muslim African countries, such as Sudan and Northern Nigeria, the application of Islamic law is confined to personal matters, this provision entitles the courts of the Somali Republic to apply Islamic law in all civil matters so long as the dispute has arisen under that law. The solution adopted has also been criticized as being rather vague.[45]
Actually, the formulation of Article 9 is the outcome of a compromise. On the one hand, it may have the effect of extending the application of Shari’a law beyond the categories specified in the law previously in force in the Northern Regions; on the other hand, the parties appear to have been given freedom of choice as to the law governing their relationship. It will be mainly for the courts to draw the precise line of demarcation between Shariatic and non-Shariatic law.
The rule of law
The law on the organization of the judiciary implements in concrete terms three essential elements of the rule of law embodied in the Somali Constitution: independence of the judiciary,[46] judicial review of legislative acts,[47] and judicial review of administrative action.[48]
The law provides adequate safeguards to protect the independent exercise of judicial functions. Members of the judiciary cannot be deprived of their judicial functions or transferred without their consent, except as a disciplinary measure in accordance with the binding advice of the Higher Judicial Council, which is entirely independent of the Executive.[49] The recommendations of the Higher Judicial Council are binding also with respect to the appointment, transfer, promotion, termination, and disciplinary proceedings relating to members of the judiciary.
The Supreme Court, with the addition of two members to be appointed by the President of the Republic and two members to be elected by the National Assembly, will form the Constitutional Court, with jurisdiction over the constitutionality of laws.[50] The decisions of the Constitutional Court have effect erga omnes. A law or a particular provision declared unconstitutional ceases to be in force on the day of the publication of the judgment.[51]
Any final decision of the Public Administration may be challenged before the Supreme Court.[52] Thus the Supreme Court acts also as the highest administrative tribunal. The powers of the Supreme Court are further strengthened by the provision that, where the Public Administration fails to comply with a Supreme Court judgment in an administrative matter, “the Supreme Court shall, at the instance of the party concerned, take the necessary action to carry out its judgment.”[53] Thus the Supreme Court is authorized, if necessary, to perform executive powers to ensure that its own judgments against the Public Administration are properly carried out.
The effectiveness of judicial review of administrative action in Somalia has been successfully tested in a recent case. On November 26, 1963, local council elections were held in the whole Republic. The new local council of Mogadiscio met for the first time on January 2, 1964, and elected its mayor. On the same day the Minister of Interior, having heard the Council of Ministers, issued a decree dissolving the Mogadiscio council and appointing a Special Commissioner.[54] It was stated in the decree that the council gave no assurance of being able to perform its functions because the newly elected mayor had also been the mayor of the previous municipal council, which had been dissolved in 1962 on the ground of “serious administrative deficiencies and irregularities.”
The mayor and a number of councilors petitioned the Supreme Court for the annulment of the Minister’s decree. The Supreme Court noted that the Minister of Interior was authorized to dissolve a local council “where a council cannot perform its functions.”[55]
It held that this impossibility should be evaluated a posteriori, whereas the grounds stated in the decree were based on a priori judgment of how the council would perform its functions in the future. Accordingly, the decree was annulled, and the local council reinstated.[56] Considering that the Government attached considerable political importance to the dissolution of the Mogadiscio council, this Supreme Court decision, and its immediate implementation, is a fine example of the supremacy of the rule of law and the independence of the judiciary in the Somali Republic.
IV. Impact of Judicial Integration on Customary Law
Where there is a dual system of courts, customary law and ordinary law tend to develop as separate water-tight compartments. The unification of the judiciary, instead, furthers the growth of unitary case law, inspired by common principles and responsive to the requirements of an evolving society. This means that customary law is subject to objective scrutiny by the best-qualified judges. As a result, those rules of customary law that survive this critical analysis emerge strengthened, while others may be discarded.
This is illustrated by two recent decisions of the Somali Supreme Court, which in the first case upheld a rule of customary law, and in the second case discarded another.
In Hussein Hersi and Another v. Yusuf Deria Ali[57] the brother of a girl who was knocked down and killed by a truck in the town of Hargeisa claimed “dia” against the driver.
In a judgment delivered by Dr. Haji N. A. Noor Muhammad J., the Supreme Court examined the following aspects of “dia “: (1) whether the payment of “dia” is consistent with the Somali Constitution and public policy; (2) whether “dia” is applicable to motor-car accidents; (3) whether “dia” for motor-car accidents is applicable in urban as well as rural areas.
The first question arose out of Article 43 (1) of the Constitution which provides that “penal liability is personal. No collective punishment of any kind shall be imposed.”
The court considered two issues: the first was whether “dia” is a penal or civil liability; the second, whether the collective responsibility of a tribe is contrary to the above-mentioned constitutional provision.
The court examined in some detail the nature of “dia” under Shari’a and Somali customary law and held:
Under the Shariat law, “dia” or blood money is a penal punishment. In cases of premeditated homicide the offender alone is liable for blood money; and in cases of involuntary or voluntary homicide the “aakila” of the offender, i.e., the agnates of the offender on the collateral line, are responsible for the blood money.
But Shariat law as applied in the Somali Republic has been modified in certain respects by customary law. First, even though the spread of Islam among the Hamitic tribes put an Islamic gloss upon the customary organization existing in the country, it did not produce any effective change in the tribal customs relating to compensation. The law of talion, which, as referred to earlier, is the principle of Shariat law, was never introduced, for there was no supreme authority to enforce it. Only the looser and less severe methods of compensation continued. When the Colonial Powers took over the administration of criminal law, the Indian Penal Code was made applicable in the former Somaliland Protectorate and the Italian Penal Code in Somalia. Under the above Codes, homicide became an offence against the State; the tribe of the victim, however, continued to exercise a right to claim civil damages, apparently as compensation for the loss of one of its members. Thus “dia,” which is a penal punishment under Shariat law, is considered civil damages in this country.
On the question of the collective responsibility of the tribe, the court held that the constitutional prohibition applied only to collective punishment imposed on villages and communities in whose areas certain crimes were committed. As the collective responsibility for the payment of “dia” is not a collective punishment, such responsibility was not abolished by the Constitution.
The court then considered the contention of counsel for the appellants that to hold compensation is payable by the tribal group would be contrary to the public policy of the State “of transforming the Somali society from the present largely tribal structure into a detribalized closely knit national State.” The court observed that the proceedings of the Constituent Assembly indicated there was no intention to abolish the collective responsibility of the tribe for the payment of “dia.” Furthermore, the public order law recently enacted by the National Assembly implicitly confirmed collective responsibility for the payment of compensation. It was held:
The Constituent Assembly which adopted the Constitution and the National Assembly both appear to approve the collective responsibility of the tribe regarding the payment of “dia.” In the face of such approval, and in view of the long-standing nature of the custom, the Supreme Court cannot hold that the collective responsibility is against the public policy of the State.
Regarding the question of whether “dia” is applicable to motor-car accidents, the court held that “under Somali customary law, there is no distinction between deliberate and accidental homicide, and ‘dia’ is applicable in both types of homicide.” The court went on to say:
Traffic accidents are comparatively a new problem, and such problems could not have been contemplated under Somali customary law.
Law, whether Shariatic or customary, is not static; and Shariat law definitely provides that, in the absence of specific provisions under Shariat to cover any particular matter or situation, analogy (“qiyas”) should be resorted to. “Qiyas” consists in the extension of the “hukm” or rule contained in one text (“Nass”), or even consensus to somewhat different facts to be covered by the same “illa” or efficient cause of the “hukm.” The Court of Justice, which was the highest court in the former Trust Territory of Somalia under Italian Administration, has laid down in Dahabo A bdi v. Haleima Abdulla (Judgment of March 11, 1957) that:
“… in the absence of provisions in customary law for the payment of damages under Shariat law, the judge can apply by way of analogy the criteria applied in similar cases.”
The above ruling approves the application of analogy in customary law, with which principle this court respectfully agrees.
When it is generally accepted that, under Somali customary law, a person must pay the “dia” of the person he kills, it does not matter whether the homicide is caused by the person directly or through the vehicle that he drives negligently. The principle of “dia” is that the offender has caused the death of another and thereby caused a loss to the latter’s tribe, and it is his duty under Somali customary law to compensate the latter’s tribe for the said loss. To deny compensation in motor-car accident cases would be contrary to the fundamental principle enunciated above.
As another ground for the extension of “dia” to motor-car accidents, the court quoted with approval the following ruling of the Court of Appeal of Hargeisa:
Under the British (and I believe many other) legal systems, the driver and owner of a vehicle causing an accident would be liable to compensate the victim, but this liability would normally be covered by compulsory car insurance. There is no compulsory insurance here and under the existing circumstances, it would be impracticable to introduce it. Somali “herr” provides a form of insurance. In natural justice, the victim of a traffic accident should be entitled to compensation where the accident is due to the other party’s negligence. Obviously, if his only claim lies against the driver, the victim will have little hope of recovering compensation awarded, as in most cases the driver would be unable to pay. In the circumstances, I feel I cannot agree with the defense submission that “herr” should not apply to such cases.
The court considered then the contention of counsel for the appellants that “dia” should not be applicable to motor-car accidents occurring in towns. It was stated by counsel that:
Tribal groups accept collective responsibility for acts of individuals only in matters which directly affect the interests and security of the group as a whole. The extent of their responsibility is moreover clearly known to them. The tribe has no interest in the traffic misfortunes to which urbanized members of the group are parties and they have no control over townsmen who take to driving motor-cars for business or pleasure.
This argument was not upheld by the court, which ruled:
If we accept the principle of collective responsibility of the tribe for the payment of “dia” or other compensation, there is no. reason why a distinction should be made whether the act was committed within a town or in the bush, or whether the act was committed by a person living in an urbanized area or a rural area.
In Hassan Hussein and Another v. Sulbub Aw Abdi,[58] a girl was engaged by her brother against her will and she eloped with the respondent and married him. The man to whom the girl had been engaged claimed “haal,” i.e., compensation, against the respondent. The claim was based on a rule of Somali customary law providing that in those circumstances “haal” is payable, regardless of whether the girl had given her consent to the engagement.
The court rejected the claim on the following grounds:
In view of the cardinal principles of Islamic law assuring that the legal status of grown-up females is as complete as that of a male, courts are not prepared to concede the right of even the father to give his adult virgin daughter in marriage without the latter’s consent. …. Even Minhaj Et Talabin states that an agnatic brother can give his adult virgin sister in marriage provided she does not oppose the choice. There cannot be, therefore, valid betrothal where she is opposed to the choice. The appellants’ claim to “haal” could arise only if there was a valid betrothal, and if Amina married the respondent during the subsistence of a valid betrothal. The claim of the appellants for “haal” cannot, therefore, be sustained.
This Conference is concerned with the integration of customary law and modem legal systems within each African country. I would, however, like to call attention to another aspect of the problem, which might be called “transnational” integration –to borrow Professor Jessup’s adjective – in other words, the integration or harmonization of legal systems among different African States.
Up to now, African countries generally follow the Western legal system inherited from the former colonial Powers. This has brought about conflicts and divergencies in legal concepts, resulting in unnecessary complications that tend to impede economic progress. These centrifugal legal forces also work against the aspiration to closer African unity.
Recently, there has been an increasing awareness that some form of integration is urgently needed, especially in laws affecting economic development, such as investments, land tenure, and water legislation. For example, the United Nations Economic Commission for Africa includes in its work program a number of projects for the harmonization of laws in economic and social areas. In addition, an organization of jurists was formed a few months ago for this very purpose, and the International Juridical Organization for Developing Countries is represented at this Conference.
The experience in Somalia of integrating two Western legal systems and customary law has taught us that the work can most effectively be done by teams of lawyers trained in different legal systems. In the beginning, there was common ground between the lawyers with British training and their Italian colleagues on only one point: both sides were convinced of the superiority of their own system. However, the constant exchange of ideas and experiences gradually broadened everyone’s vision. In the end, mutual suspicion gave way to fruitful collaboration.
While it is natural for a lawyer to be reluctant to question the validity of the legal concepts and traditions in which he has grown up and been trained, it should be less difficult for African jurists to be flexible about other peoples’ legal traditions.
The approach to the work of integration can be described by a story of ancient Greece: during the Peloponnesian War, a courier was running to Athens with an urgent message. On his way, he met an old shepherd and stopped to ask “How far is Athens from here?” The shepherd did not answer. The messenger, thinking the old man was deaf, started off again at a brisk trot. When he had gone about 100 yards, the shepherd shouted “Two hours away!” The messenger turned his head and shouted back “Why didn’t you answer before?” And the shepherd replied, “How did I know how fast you run?”
If we are to make real progress, we need the speed of the Greek messenger coupled with the wisdom of the old shepherd, who gave the right answer only after weighing all the elements of the problem.
* Chief of the International Trade Law Branch, Office of Legal Affairs of the United Nations. United Nations Legal Adviser to the Somali Government and Chairman of the Consultative Commission for Integration (1960-1965). The views expressed herein are those of the author and are not to be taken as the views of the United Nations.
Footnotes
[1] Law No. 5 of 31 January 1961, Art. 1 (1).
[2] Ibid., Art. 3.
[3] Decree of the President of the Republic No. 19 of 11 October 1960.
[4] By decree of the President of the Republic No. 271 of 29 October 1964 the Commission was reconstituted as Consultative Commission for Legislation, and was given broader powers. The present Commission has a Somali chairman, Mr. Michael Mariano.
[5] Law No. 5 of 30 January 1962. The Special Commission was also charged with the preparation of a law on the Judiciary and a Traffic Code. However, a draft law on the Judiciary had already been prepared by the Integration Commission, and a draft Traffic Code by an ad hoc commission. Accordingly, most of the substantive work on these two laws was not done by the Special Commission.
[6] Law No. 28 of 22 December 1962.
[7] Law No. 14 of 3 June 1962.
[8] Law No. 19 of 14 August 1963
[9] Law No. 7 of 15 March 1962. As this law does not deal with pensions for civil servants, a unified pension law is being prepared. Pending its adoption the Northern Regions’ officials are entitled to pension under pre-independence legislation, whilst the Southern Regions’ officials do not have that benefit.
[10] Legislative Decree No. 2 of 29 December 1961.
[11] Law No. 21 of 26 August 1963.
[12] Law No. 5 of 31 January 1961.
[13] Law No. 4 of 22 January 1964.
[14] Legislative Decree No. 3 of 12 June 1962.
[15] Legislative Decree No. 2 of 31 March 1964.
[16] Legislative Decree No. 5 of 16 December 1962.
[17] Legislative Decree No. 1 of 1 June 1963.
[18] Legislative Decree No. 2 of 24 December 1963.
[19] Legislative Decree No. 1 of 31 March 1964.
[20] Law No. 13 of 23 May 1961.
[21] Law No. 18 of 14 August 1963.
[22] Decree-law No. 9 of 8 August 1964.
[23] Law No. 3 of 19 January 1963.
[24] Law No. 7 of 10 June 1963.
[25] For example, the law delegating to the Government the authority to prepare a penal code, a code of criminal procedure, a judiciary law and a traffic code, directed that all this legislation, to be drafted in two languages, must be enacted in six months. (Law No. 5 of 30 January 1962.)
[26] The Constitution was prepared in Mogadiscio during the Italian Trust Administration and was originally intended to apply only to the Southern Regions at the end of the trusteeship. The technical work was done mostly by Italian jurists; as a result, the Constitution is largely influenced by the Italian Constitution. The Union was formed on the day of the entry into force of the Constitution, which was simply extended to the whole territory of the Republic without change.
[27] Penal Code, Arts. 411, 412-prohibitionism is applicable to all alcoholic beverages, “of a strength exceeding 3 percent of proof spirit” (Art. 417).
[28] Ibid., Art. 434.
[29] Ibid., Art. 442.
[30] Law No. 6 of 10 February 1962. This law was implicitly abrogated on April 1, 1964, the day of entry into force of the Somali Penal Code.
[31] Santiapichi, II prezzo del sangue e l’omicidio nel diritto somalo (1963), p. 49.
[32] Minhadj At-Talibin, Manuel de Jurisprudence Musulmane selon le Rite Chafi’i, Vol. III (Batavia, 1884), pp. 117-118.
[33] Law No. 21 of 26 August 1963, Art. 69, A similar provision had been in force in the former Protectorate under the Political Cases (Attachment of Livestock) Ordinance, 1937, s. 6, and was extended to the Southern Regions during the British Military Administration (1941-50).
[34] Legislative Decree No. 3 of 12 June 1962.
[35] In the Northern Regions the separation between the two jurisdictions was complete. The Kadis’ Courts were courts of first instance: the Court of the Chief Kadi had appellate jurisdiction, and its decisions were final. The ordinary courts comprised the Subordinate Courts, District Courts, and the High Court in Hargeisa. Until June 26, 1960, the day after the independence of Somaliland, appeals against decisions of the High Court were heard by the Court of Appeal for Eastern Africa in Nairobi, and thence by the Judicial Committee of the Privy Council. After the union between Somaliland and Somalia the Supreme Court in Mogadiscio was given appellate jurisdiction over decisions of the High Court (Law No. 18 of 24 May 1961). In the Southern Regions, the Kadis had original jurisdiction in Shariatic matters; the Tribunal of the Kadis heard appeals from the Kadis; the Shariatic Section of the Supreme Court, consisting of the Court’s President and two Kadis, had appellate jurisdiction over the Tribunal of the Kadis. In view of the participation of the President of the Court (an Italian judge), the separation between Shariatic and non-Shariatic courts was not altogether complete. The non-Shariatic jurisdiction was exercised by the District Judges, the Regional Judges, the Judge of Appeal, the Assize Court, the Assize Court of Appeal and the Supreme Court.
[36] Legislative Decree No. 3 of 12 June 1962, Art. 2.
[37] In the Italian Trust Territory District Commissioners were empowered to act as District Judges under the terms of Decree No. 7 of 22 March 1958. In the British Protectorate the Judicial Districts and Appointment of Judges Ordinance, 1939, provided that District Officers shall be Judges of the District Courts.
[38] The law provided also for the establishment of a Military Penal Section in the Regional Courts of Mogadiscio and Hargeisa and a Military Penal Appellate Section in the Courts of Appeal of the same places. These sections, however, are in the process of being replaced by Military Tribunals.
[39] Subordinate Courts Ordinance, 1944, s. 4 (1).
[40] Ordinance No. 5 of 2 February 1956, Arts. 6 and 7.
[41] Subordinate Courts Ordinance, 1944, s. 10 (2).
[42] Ordinance No. 5 of 2 February 1956, Art. 2.
[43] Legislative Decree No. 3 of 12 June 1962, Art. 9.
[44] Cotran, “Legal Problems Arising Out of the Formation of the Somali Republic” (1963) 12 I.C.L.Q. 1021.
[45] Santiapichi, op. cit., p. 26.
[46] Constitution of the Somali Republic, Arts. 93 and 96.
[47] Ibid., Art. 98.
[48] Ibid., Art. 39.
[49] The Higher Judicial Council consists of the President of the Supreme Court, the Attorney-General, the members of the Supreme Court and three members elected by the National Assembly.
[50] Legislative Decree No. 3 of 12 June 1962, Annex I, Chap. I.
[51] Ibid., Art. 6 (4).
[52] Legislative Decree No. 3 of 12 June 1962, Art 5 (3) (b).
[53] Ibid., Art. 10 (4).
[54] Ministerial Decree No. 9 of 2 January 1964.
[55] Law No. 19 of 14 August 1963, Art. 44 (1).
[56] Ahmed Muddei Hussen and Others v. The Minister of Interior, Supreme Court Judgment of March 17, 1964.
[57] Civil Appeal No. 2 of 1964.
[58] Civil Appeal No. 5 of 1962.
Source: The International and Comparative Law Quarterly, Vol. 16, No. 4 (October 1967), pp. 1088-1105
Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law
