Researching the Legal System of the Republic of Djibouti

By Mustafe Mohamed H. Dahir

Mustafe Mohamed H. Dahir is a lawyer by profession. Holding LLB from University of Hargeisa and Master’s Degree (LLM) in International Trade and Investment Law in Africa from University of Pretoria, South Africa and is currently a PHD Candidate. Mr. Dahir is employed as a Senior Legal Advisor of the Somaliland House of Representatives [Parliament]. Subsequently working as an advocate at a private law firm namely Acacia Law and Justice Institute, he has taught Commercial Law, Property Law and Professional Ethics at University of Hargeisa, Somaliland for the past 4 years and currently serves as an Associate Professor of the Faculty of Law and Externships. He has published and edited several books including “Legislative Drafting Handbook”. His research interests are in the area of International Investment and Trade Law, regulatory law, alternative dispute resolution, law and justice reform programs, information and telecommunications law.

Published November/December 2015
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1. Geo-Political History of Djibouti

Republic of Djibouti is located in a strategic place at the Horn of Africa particularly between the Red-sea and the Gulf of Aden and has a border with Ethiopia in the west, Eretria in the Northwest and Somaliland in the south and has a sea border with Yemen Arab Republic, Somaliland and Eritrea.

After the partition of Africa in 1884 Djibouti was imperialized by the French who made bilateral agreements with sultans of both Somali and Afar communities who lived in the area and was named at that time as French Somaliland in 1887. In 1894 the French government settled in Obock which is located in the western coast of French Somaliland however he later moved to Djibouti which he made the capital of the country and started his administration there. The southern border of French Somaliland with Ethiopia was drawn on 1897. The French rule in Djibouti continued until 27 June 1977.

On 28 October 1958 the first general referendum was performed in which the inhabitants were asked if they want to remain a French territory or to become an independent country. The result of this referendum showed that the majority of the inhabitant’s choice was to remain under the French rule.

On 19 March 1967 another referendum took place after the French rule faced a great pressure from independence activists and the result was to remain as a French territory. As a result the name of the colony was changed to the French territory of Afar and Essa.

After UN resolution on the question of French Somaliland in 1976[1] ordered the French government them their independence. A referendum was held in May 8, 1977; in which 98.8% of the population vote “yes” to the Independence territory. The Djibouti became an independent state and officially inaugurated their independence day on 27 June 1977 by the first Prime Minister of the country H.E Ahmed Dini Ahmed. H.E Hassan Guleed Abitidoon became the first president of Djibouti Republic and he remained in power until 1999.

During the period he was in power, Hassan Guleed Abtidoon established a one party system in the country RPP which was his own party. After that in 1991 a civil war broke out in the country between the government and armed militias of the Afar (Front for the Restoration of Unity and Democracy (FRUD). However, peace treaty was signed in 1994 by FRUD and Djibouti Government and according to the peace treaty FRUD became part of the government.

A General election was held in 1999 in which Hassan Guleed succeeded again to become the president of the country. Within the same year he resigned on medical grounds and was replaced by the incumbent president H.E Ismail Omar Gele.

Djibouti has got a sea port which is important for the commercial transactions in the horn of Africa there are also military bases owned by foreign military forces such as France, Germany, NATO and USA. The Republic of Djibouti consists of 5 administrative units called districts including the capital city of Djibouti, Ali-sabieh, Dikhil, Todjourah and Obockh. Djibouti is located in the tropical zone of Africa. The new government policy on decentralization has created regional councils within the district. The members of these councils are selected from among the residents of the districts and have a broad discretion in public management.

1.1. Foreign Relations

The Republic of Djibouti is a member of the African Union (former OAU), the Arab League and IGAD (Intergovernmental Authority on Development in Eastern Africa). The country is also a member of the UN and most international organizations (World Bank, IMF, ADB, ACP,) and regional integrations (COMESA CED-INS).

2. Legal System

Djibouti’s legal and judicial system is largely inspired by the French legislation. Laws are codified in which the system of the country is based on the coexistence of Islamic law (Sharia), customary law and civil law inherited the French Napoleon Code.

2.1. Sharia Law

Given that Islam is constitutionally recognised as ‘the religion of the people and of the State,’ it is therefore no surprise that the preamble of the Constitution names Sharia as ‘the sole source of law.’ References in other pieces of legislation further buttress this primacy of Sharia. For example, the swearing-in oath of the President of the Supreme Court, that is the top official of the Judicial Power, enjoins him, in the exercise of his functions, to respect ‘Sharia, the Constitution and laws of the country’.

2.2. Customary Law

Customary and traditional rules are applicable in communities where they are recognized, provided that they are not in conflict with the state law. Customary and traditional rules promoting inequality between citizens are prohibited in the country, and those governing matrimonial regimes and inheritance require the consent of the parties concerned.

Traditional law often applied in cases involving conflict resolution and victim compensation. Traditional law stipulates that a price be paid to the victim’s family for crimes such as murder and rape. Most parties preferred traditional court rulings for sensitive issues such as rape, where a peaceful consensus among those involved was valued over the individual rights of the victim, who often received pressure from family to abide by traditional court rulings.

2.3. Sources of Law

It is to be noted here that the Sharia, the Constitution, legislations (organic laws, ordinary laws, ordinances and decrees) and treaties are the sources of Djiboutian law.

3. The Constitutional Framework

The current Constitution of Djibouti was adopted by referendum on 9 September 1992. The constitution guaranteed democratic sovereign republic and the equality of citizens before the law. It opens with an inspirational preamble which includes title of two of the fundamental human rights and freedoms (the Charter), which closely mirrors Djiboutian adhesion to the ideas and principles of the United Nations Universal Declaration of Human Rights and the Charter of the Organization of the African Unity.

In terms of the 1992 Constitution, Djibouti is a Republic founded on the principles of democracy, the rule of law and justice. The separation of powers is entrenched in the Constitution, which established an Executive made up of a President elected directly by a popular vote of the people for a renewable Six-year term, and a Government led by a Prime Minister appointed by the President. The legislative power is vested in a unicameral assembly consisting of sixthly five members elected by direct universal suffrage. Judicial power is exercised by the Supreme Court and other courts. The judiciary is independent from the executive and the legislative branches of the Government and exercised by the Supreme Court and subordinate courts.

Subsequent constitutional amendments have maintained that initial framework. It was amended by the Constitutional Law No. 215/AN/08/5th of September 4, 2007; the amendment abolished the Chamber of Accounts of the Supreme Court which was replaced by the “Court of Auditors”. After some time, the constitution was reviewed by the Constitutional Act No. 92/AN/10/6th of April 2010 asserted the Djiboutian greater freedom and civic liberties that political parties and/or groups of political parties contribute to the exercise of suffrage and exercise their activities freely in compliance with the Constitution, the principles of national sovereignty and democracy. These amendments passed by the National Assembly in 2010 reduced presidential terms from six years to five, and specified that candidates must be between the ages of 40 and 75. The 2010 constitutional changes provided for the formation of a bicameral parliament comprising the existing National Assembly and a newly created Senate, though steps to establish one have yet to be taken.

4. Branches of the Government

4.1. Executive Power

The executive power is led by the president of the Republic who is the Head of State, Head of Government and Commander in Chief, and is elected by the people on the basis of universal suffrage by secret ballot for up to six-year term. The President is assisted in the performance of his duties by a government whose full members are the Prime Minister and ministers.

As enshrined by the Constitution of Djibouti, the Government is under the political authority of the President. The President of the republic appoints a Prime Minister to assist him in carrying out his responsibilities. Later, he appoints and defines their duties Ministers and other officials of the government after he receives a proposal from the Prime Minister. All members of the government are appointed a presidential decree issued by the Prime Minister.

The prime minister is responsible of coordinating the actions of the government. Ministers are in charge of their own ministries which are responsible for administering by orders or circulars; Delegates ministers under the authority of a minister, they are responsible for a ministerial portfolio depending on said Minister; Secretaries of State also under the authority of a minister, they are considered in the order of protocol. Spokesman of Government: often related to a ministerial allocation, this function corresponds to the expression of the government’s position.

The current decree on departmental awards is Decree No. 2013-058/PRE of 14 April 2013 which organizes a government of 23 members (one Prime Minister, six ministers, including the spokesman, two deputy ministers and three Secretaries of State).

4.1.1. Prerogative of the President of the Republic

He embodies national unity and guarantees the continuity of the State and he is also a guarantor of national security, national independence, territorial integrity and respect for the Constitution, treaties and international agreements. He appoints Djiboutian diplomatic representatives and receives foreign ambassadors accredited in the country. The President of the Republic determines and conducts the policy of the nation. It has regulatory power which he signs all the decrees deliberated by the Council of Minister. He can take the initiative of bills to be submitted to the national assembly and the constitutional review after consulting with the Speaker of the National Assembly and the President of the Constitutional Council any bills to a referendum. He supervises the implementation of court decisions. He negotiates and approves international treaties and conventions which are subject to ratification by the National Assembly.

4.1.2. Ordinances

The Government may, for the implementation of its program, request the National Assembly to allow it to legislate, by ordinance, on matters that are normally within the scope of the reserved legislative domain. Such an authorization is time-bound, and the Government shall table all the ordinances that it has passed during the authorized period before the National Assembly when the latter is sitting. Failing to do so makes the ordinances null and void. Ordinances are passed by the Council of Ministers, which shall request for the opinion of the constitutional council.

4.2. Legislative Power: Organization of the National Assembly

Per Article 45 of the Constitution, legislative power belongs to unicameral National Assembly or Assemblee Nationale, whose members are called ‘Députés.’ The assembly formerly known as the Chamber of Deputies and consist of 65 seats; where 52 members directly elected in multi-seat constituencies by simple majority vote and 13 directly elected in multi-seat constituencies by proportional representation vote; members serve 5-year terms; note – in 2012, the electoral law was modified to include proportional representation for 13 seats.

To be elected member of the National Assembly the Organic Law no.16/AN/12/6ème L of December 06, 2012 relative to the Electoral Code set the following conditions: one has to be over 23 years of age, be a Djiboutian by birth or by naturalization for ten years and having resided in Djibouti since the date of naturalization, and be presented by a regularly constituted political party.

Those are relatively ineligible to contest the Assembly are the President of the Republic, National Commissioners, District Chiefs and Deputy District Chiefs, Sub-district (arrondissement) chiefs in the district of Djibouti, Government and ministry secretaries general, magistrates, state supervisors, labour inspectors and school supervisors, member of the armed forces of the national security force, police commissioners and inspectors.

However, like in other Civil Law countries, a residual legislative power is left in the hands of the Executive. Articles 56 & 57 of the Constitution exhaustively list the subject areas that constitute the exclusively legislative domain of National Assembly. As per article 59 of the Constitution, all matters not listed in articles 56 and 57 fall under the regulatory power (pouvoir réglementaire) of the Executive which exercises it through decrees. This regulatory power belongs to the President of the Republic who may delegate part or the totality of it to the Prime Minister.

As another common feature of civil law systems, the Government may in certain circumstances ‘legislate’ on subject areas within the exclusive legislative competence of the Assembly by way of ordinances. This is regulated by article 60 of the Constitution which states that ‘with the agreement of the President of the Republic, the government, in order to execute its program, may ask the Parliament for the authorization for a limited period of time to pass ordinances for measures which are normally in the domain of the law.’ These ordinances must be adopted at a Council of Ministers and signed by the President of the Republic. They enter into force immediately after their publication and must subsequently be tabled before the Parliament, within the timeframe stated in the enabling law, for purposes of ratification. The president has the power to notify the constitutional council when he considers that a law is contrary to the current constitution.

Equally worthy of notice is the fact that there exists a special category of laws known as organic laws. These typically serve to define the legal framework of key institutions and processes mentioned in the Constitution. In total, the Constitution prescribes for the enactment of 9 organic laws. The adoption or amendment of organic laws is subject to relatively stricter conditions stated in article 67 of the Constitution; one of which is that their constitutionality must first be checked and certified by the Constitutional Council before they can be promulgated.

4.3. Constitutional Council

The Constitutional Council is an important body that oversees the proper functioning of institutions. It is regulated by Articles 75-82 of the Constitution of 15 September 1992 and the Organic Law No 4/AN/93 of 7 April 1993 laying down the rules of organization and functioning of the Constitutional Council. The Constitutional Council ensures compliance with constitutional principles. It controls the constitutionality of laws. It guarantees the fundamental rights of the individual and public freedoms. It is the regulating body of the functioning of institutions and the activity of the authorities. The Council is composed of 6 members; its President and two of whom are appointed by the President of the Republic, 2 by the President of the National Assembly and 2 by the supreme council of magistracy. The President of the Constitutional Council is appointed by the president from among its members. Former presidents of the Republic are ex officio members of the Constitutional Council. Members of the Constitutional Council shall enjoy immunity granted to members of the National Assembly. Members of the Constitutional Council must be aged at least thirty-five years and be selected primarily from among jurists of experience. The mandate of members of the Constitutional Council is 8 years non-renewable.

The Constitutional Council shall ensure the regularity of all elections and referendums and proclaim the results. It shall examine complaints and rule on them. The Constitutional Council is seized in case of dispute on the validity of an election by any candidate and political party. For the same purpose, the laws can be referred to the Constitutional Council before their promulgation by the President of the Republic, the President of the National Assembly or ten deputies. Referral to the Constitutional Council by the President of the Republic must within six days of the delivery made to him definitively to adopt law.

The decisions of the Constitutional Council are coated with the authority of res judicata. They are not subject to appeal. They are binding on public authority’s at all administrative and judicial authorities and all natural or legal persons.

4.4. Superior Council of Magistracy

The organization and functioning of the Superior Council of Magistrates are governed by the Organic Law No. 3/AN/3rd L 93 of 7 April 1993 as amended by Act No. 10/AN/01 the 4th of February 8, 2001 and Decree No. 99-0171 of 16 September 1999 concerning the functioning of the Higher Judicial Council terms.

The Superior Council of Magistracy, under the Organic Law of 7 April 1993, watches over the management of magistrates’ career and gives its opinion on any question concerning the independence of the judiciary. It shall act as the disciplinary council for judges as enshrine under Article 73 of the Constitution. The Council is composed of four judges elected by their peers, 3 figures (neither parliamentary nor judges) appointed by the President of the Republic, and 3 appointed by the President or Speaker of the National Assembly. The members of the Superior Council of Magistracy are appointed by decree of President of the Republic for a period of 4 years.

The status of the Judiciary is defined by an organic law of 18 February 2001. It has many similarities in terms of rank, duty, discipline and statutory position with the status of the judiciary in France. Judges (headquarters and parquet) are appointed by decree of the President of the Republic after consultation with the CSM. Once appointed, they follow a one-year internship in court. Promotion occurs by decree of the President of the Republic on the proposal of the Minister of Justice and after consulting the CSM.

4.5. Judicial Organization

The judicial system includes a single judicial order with a higher tribunal. However, this structure coexists with justice and customary law Charienne justice. Customary Justice treats simple disputes in civil matters (nfeighborhood disputes or rents). The customary courts are presided over by civilian administrators and are established in the administrative centers of the districts and in the districts of the capital. The influence of that justice tends to decrease and only the customary court of the city of Djibouti works. There is also an informal customary justice rendered by the ‘akals “(tribal elders) in neighborhoods.

The Charienne Justice applies the Islamic law is made by the “wheelbarrows” (wise). They are divided into districts and administrative centers in the districts of the capital. The Grand Qadi of Djibouti is, moreover, an appellate judge. The Charienne Justice had exclusive jurisdiction to the only people of the Muslim faith, in matters of inheritance, marriage celebration, divorce, and alimony and child custody. However, the Act of June 30, 2003 in family matters has replaced the Sharia courts by a State Court.

State Justice, jurisdiction for all disputes is divided into a Court of First Instance, a Court of Appeal and Supreme Court:

  • The trial court’s common law judge has a jurisdiction over all the territory. It consists of specialized chambers, which decide a single Judge.
  • The Court of Appeal, appellate court, with appeals lodged against the judgments of the CFI. It is organized into specialized divisions, with room charges, a criminal court and a council of administrative litigation.
  • The Supreme Court is the Court of Cassation, responsible for ensuring compliance with the law. Its chairman is appointed by the President of the Republic.

5. Other Key Institutions

5.1. The Ombudsman

The Mediator of the Republic is a newly established institution which created by law No. 51 of 21 August 1999. The ombudsman is an independent person who “receives complaints from public and representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights.”

The Ombudsman does not replace the courts. Its services are organized by Decree No. 2000-149/PRE of 11 June 2000. The Ombudsman has a general secretariat, a management service documentation and archives, three instruction departments (General Administration, Social and Culture, Economy and Finance) and regional delegates in the 4 districts of the country (Ali-sabieh, Obock, Tadjourah and Dikhil).

The Ombudsman enjoys financial autonomy and allocated to it the funds required to fulfill its mission whose management arrangements are determined by Decree No. 2000-0150 / PRE of 11 June 2000.

The Ombudsman is the officer which is also mandated to oversight the Chamber of Accounts.

5.2. National Communications Commission

The National Communications Commission is an independent authority established by law No. 2/AN/2nd L 92 of 15 September 1992 on freedom of communication. Freedom of communication is guaranteed by the Constitution and is defined by section 3 of the Act referred to above: “Freedom of communication is the right of everyone to create and use freely the media of his choice to speak his mind communicating it to others, or to access the expression of the thought of others.”

The National Communication Commission mission is the development and implementation of government policy in the field of information and Communication and to organize and participate in all national, regional and international encounters dealing with issues of communication. It is also responsible for ensuring compliance with the pluralism of information.

6. Official Gazette

7. International and Other Sources

International Organizations

Some International organizations have attempted to compile Djibouti material online including the Human Rights Watch, International Labour Organizations (ILO) and COMESA (The Common Market for Eastern and Southern Africa). The information posted those organizations on their websites are not limited to legal information.

 

[1] UN RESOLUTIONS ADOPTED ON THE REPORTS OF THE FOURTH COMMITTEE Calls upon the Government of France to implement scrupulously and equitably, under democratic conditions, the programme for the independence of so-called French Somaliland (Djibouti), as outlined by the representative of France in his statement before the Fourth Committee of the General Assembly, within the indicated time frame, namely, the summer of 1977; and Endorses all resolutions adopted by the Organization of African Unity on the question of so-called French Somaliland (Djibouti), in particular resolutions CM/Res.431/Rev.1 (XXV) and CM/Res.480 ( XXVII), as well as the declaration adopted by the Organization of African Unity Co-coordinating Committee for the Liberation of Africa, as approved by the Council of Ministers at its twenty-seventh ordinary session and the Assembly of Heads of State and Government at its thirteenth ordinary session, and welcomes the solemn declarations by the leaders of the delegations of Ethiopia and Somalia before the Council of Ministers of the Organization of African Unity and before the Fourth Committee of the General Assembly that their Governments would recognize, respect and honour the independence and sovereignty of so-called French Somaliland (Djibouti) and its territorial integrity after its accession to independence.