At the outset of the union between British and Italian Somalilands in 1960, Somalia’s judiciary sector faced systematic challenges. The Law of the Organization of the Judiciary in 1962 reconciled and harmonized the British Common and Italian Latin law systems of the respective former colonial administrations. An integrated judiciary system served both centralized unitary civilian and military governments until the latter was overthrown in 1991.
After more than a decade without a functioning government, a federal system of governance was proposed and several regional states have since emerged. There is, however, a lack of clarity and agreement on how the judiciary operates within the federal system.
Structurally, the still provisional constitution creates three levels of courts namely the Constitutional Court, the Federal Government level courts, and the Federal Member State level courts. Article 108 of the provisional constitution states that all matters relating to the interpretation of the constitution will be the responsibility of the Constitutional Court. Articles 109A and 111A respectively give the federal level Judicial Service Commission authority to administer the Constitutional Court and the Federal Government level courts, and the Federal Member State institutions the authority over the Federal Member State level courts.
The numbers and jurisdictions of the federal government and federal member state courts, however, are not clear in the constitution. For instance, article 109 (3) requires a Federal Law that regulates the relationship and collaboration between Federal Government level courts, and Federal Member State level courts. This law is yet to be enacted. Both the constitutional court and the judicial service commission are also yet to be formed.
Despite the absence of federal level judiciary structures, the newly emerged states have created their own courts including high (or supreme) courts, which lead to confusion over the jurisdictions of state and federal government level courts. The Benadir region — which includes Mogadishu — and its status in a federal Somalia also remains unresolved. Its integrated court structure model is not in line with the current provisional constitution.
Options for Somalia’s judicial system is just one among several contested issues in the constitutional review process. So far the constitutional review commissions have developed three possible options: an integrated judicial system, a mixed model, or a dual system.
Option one: integrated (unified) model
In the integrated model, the judiciary system is unified. Unlike the executive and the parliament branches of government that have parallel federal and state level governments and legislative bodies, the judiciary sector is integrated and not federated. In this model, the unified court structure adjudicates all federal and state laws regardless of territories.
There are a number of benefits for adopting this model. First, it would limit disputes over jurisdictions. Given the on-going and likely future power struggle between the federal government and regional states, a judiciary that is distinct from these political structures would be a significant advantage. Second, the unified model would be more economical, and since it does not duplicate costly justice institutions, it would be more suitable for Somalia’s weak financial capacity. Third, Somalia’s past practice means the unified model would be more familiar to the existing legal capacity, government and public. There are also practices and experiences to draw on, where federal states — India and Belgium for example — have adopted a unified judiciary model.
The integrated model does, however, have its limitations, especially in Somalia’s current context. Since the collapse of central government, the trust and confidence between Somalis of different regions deteriorated. Indeed, it was this lack of trust and accumulated grievances from the past wars and communal violence that led to Somalia adopting a federal system of governance. Some regional states and their leadership have little confidence in the central government, and they are likely to equally suspicious of a centralized integrated judiciary system, over which they have no direct control.
Option two: mixed model
The mixed model creates a judiciary system, in which the federal and state levels collaborate. The mixed model proposed by the review commissions removes the state level high court provided for in the current federal provisional constitution. The commission suggests instead that the state governments will have the jurisdiction of district and regional courts (of the first instance) and appeal courts (in the regional state capital). The federal government, on the other hand, adjudicates the Supreme Court and the Constitutional Court. In this model, different levels of the judiciary fall under the state and federal governments’ ambits. Germany and Canada are two countries that use a mixed judiciary model.
The mixed model has advantages. First, the judiciary is federated and each level of government has a judiciary authority under its scope and mandate. Second, there is a collaboration between federal and state level courts. For instance, if a case at the state level appeal court does not reach a satisfactory verdict, the case is transferred to the Supreme Court.
On the other hand, the mixed judiciary model has its weaknesses, not least since competition between judiciaries could mirror the existing tensions between the federal government and member states. Although under this system a federal body called the Higher Judicial Council will administer judiciary matters at every level, each state government will have its own particular influence on the court’s local functioning. This could create variance between the federal and state level, and between states, in terms of qualification, capacity, experience, and accreditation (in the case of lawyers and judges) of the judiciary.
Option three: dual model
The dual system proposes to introduce two different and independent federal and state level judiciaries. Under this system, the federal government would have its own federal judiciary in all districts and regions of the country, which would work in parallel with the regional judicial institution. Every district will have federal level and state level courts, each of which will have its own jurisdiction. The federal court would have the mandate to adjudicate federal-related issues, while state-level court would have the mandate of state-level matters. In addition, there will be a federal constitutional court which will only deal with constitution related issues. Argentina, America, and Nigeria are among the federal countries that use dual judiciary model.
In this model, every regional state will have its own judiciary completely independent from the federal government and its laws will be set out by state parliament. In this regard, disputes over jurisdictions are avoided as the constitutional powers of federal and state courts are clarified. There are downsides to this model, including the huge amount of financial and human resources need to maintain parallel systems. Somalia’s current security situation would mean that in the short term at least, it would be difficult to open parallel courts in some regions.
The viable option for Somalia
Though more than a decade has passed since the federal system was (provisionally) introduced, there is still limited understanding of the comparative federal judicial models available. The difficult relationship between the federal and state governments — not to mention the debate around Sharia — has inhibited open and meaningful Somali-debates and studies on the kind of judiciary Somalia needs. A comprehensive investigation of each model is necessary to help achieve consensus among the political actors to address the continuing structural conundrum of the judiciary sector as the federal system of governance continues to develop.
Our view, however, is that the integrated model with structural modification would be a viable option for Somalia, at least in the short term for three main reasons. First, the unified model has its rudimentary court structure in place across the country. Second, it requires less cost compared to other options. Third, the integrated model mitigates potential disputes over jurisdictions. The strengths of the unified model outweigh its weaknesses. Nonetheless, in order to get the blessing and support of the regional states, the Higher Judicial Council (the Judiciary Service Commission), which will direct all judiciary-related matters, should be established with the consensus and agreement of the states.
This piece is the first of Access to Justice series