UPDATE: Researching the Somaliland Legal System

Update by Prof. Mohamoud Hussein Farah

Prof. Mohamoud Hussein Farah is a senior attorney, a member of Somaliland Lawyers Association, and has been the Dean at the College of Law and Legal Aid Clinic at the University of Hargeisa, Somalia, where he also has been lecturing in Environmental Law and Natural Resource, Labour Law, Introduction to Law and Legal Systems, Maritime Law and Conflict of Laws since 2004. Prof. Farah served as the Vice Chairperson of Law Reform Commission (2009-2017) with long experience of work in the field of legal and law review and reforms through legal education and research of justice system. He has actively promoted human rights advocacy, has been engaged in judiciary institutions reform, and has been associated with other Universities including for example Mekelle School of Law in Ethiopia, Pretoria University, University of Cape Town in South Africa, and Djibouti University. He graduated from International University of Africa, Khartoum and holds an LL.B Degree in Law, PGD in Law and Economics from Sudan Academic Universities, LLM and M.A. in Security, Peace and Governance from University for Peace, an UN mandated institution. Prof. Farah with the assistance from Professor Gaskins is the founder of Somaliland Legal Clinic at the University of Hargeisa. Prof. Farah is active among several international legal institutions, is a senior fellow researcher at university of Cape Town, and he regularly publishes articles related to Somali legal development.

Published May/June 2020

(Previously updated in January 2016)

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Table of Contents

1. Republic of Somaliland

During the colonization of Africa, the Somali territory was divided into five areas, all subjected to colonial rule, but ruled by different imperialist powers. The northern part of the Somali territory was colonized by the British government, which named it the “Somaliland Protectorate.” The United Kingdom ruled the Somaliland Protectorate from 1884 to 1960. During the mid-1950s, when the African nationalist movements were gaining momentum, Somaliland became part of the political movement against imperialistic domination. Thus, the chiefs and the political leaders in Somaliland agreed to demand their independence from the British government, which was granted on June 26, 1960.

The other four parts of the Somali territory, defined as areas which were occupied by Somali people (Southern Somalia, Djibouti, parts of Ethiopia (the Ogaden region) and the Northern Province of Kenya), were colonized by Italy, France, Ethiopia, and Kenya, respectively. During the nationalist movement, Somalis in these regions were also struggling to gain their independence from colonial rulers. At that time, Somaliland was the only independent Somali territory,[1] and started a political movement towards the unification of all Somalis in the colonized territories into a single state. As a result of this movement, South Somalia gained independence from Italy on July 1, 1960. Although Somaliland was already recognized as an independent state by over 30 countries, the Somaliland government chose to unite voluntarily and unconditionally with South Somalia, indicating the strength of the prevailing sentiment of Somali unity. On July 1, 1960, Somaliland and South Somalia united together to become Somali Republic.

The Union of Somaliland and Somalia Law did not have any legal validity in Somalia and the approval “‘in principle’ of the Atto di Unione was not sufficient to make it legally binding in that territory.” Cotran [(1968)12 ICLQ 1010] comments that the legal validity of the legislative instruments establishing the union were “questionable” and he summarizes the reasons as follows:

“a) The Union of Somaliland and Somalia Law, and the Somalia Act of Union were both drafted in the form of bilateral agreements, but neither of them was signed by the representatives of the two territories.

b) The Union of Somaliland and Somalia Law purported to derogate in some respects from the Constitution of the Somali Republic.

c) The Somalia Act of Union was approved “in principle” but never enacted into law.

d) The decree law of July 1, 1960, did not come into effect since it was not converted into law in accordance with the Constitution.”

In 1969, after nine years of civilian rule, the Democratic Republic of Somalia fell under military rule. A coup d’état, led by General Mohamed Siyad Barre, overthrew the civilian government of Cabdrashid Ali Sharmake. While the military regime was in power in Somalia, a political movement developed in the northern regions of Somalia (Somaliland) against the Barre regime. As result of that movement, Barre dismantled and banned all political parties in the country, as well as suspending the multi-party system and the Constitution of the Republic of Somalia.

In 1981, in response to Barre’s actions, members of the Somaliland elite launched the Somali National Movement (SNM) in London. This movement incited the northern regions of Somalia (Somaliland), where the Isaac clan dominated, to become increasingly hostile toward the military government and better organised in its campaigns against it. The government of Somalia consequently imposed certain harsh security measures. Politicians belonging to the Isaac group were either killed or arrested. It should be noted that the status of the Isaac was not like that of the Tutsi in Rwanda or Bosnian Muslims in Serbia, for example, in terms of holding high-ranking governmental positions. The Isaac served as government ministers and highly ranked military personnel, among other positions.

By early 1988, a full-fledged civil war had broken out in Somalia, with hostility coming from the northern region, directed at the military government. As a result of the aggression towards the government, Barre’s regime destroyed Somaliland’s capital of Hargeisa, using a combination of artillery, South African mercenaries, and bomber aircraft, which were launched from the airport and outskirts of the city of Hargeisa. Several UN agencies reported these atrocities in addition to found evidence of genocide and mass graves, with Somali people being the target. The SNM defeated Barre’s forces in the northern regions, and as result it gained the authority to rule the former northern regions of Somalia (Somaliland). In 1991, the civil war came to an end.

After the fall of Barre’s regime in Somaliland, an inter-clan conference was held in Buroa. On May 18, 1991, the Republic of Somaliland declared itself an independent and sovereign state. The territory of Somaliland is bordered by Ethiopia in the south and west, by Djibouti in the northwest, by the Gulf of Aden in the north, and by Somalia in the southeast.

1.1. Reception and Application of Different Legal Orders

Prior to colonial presence in Somaliland, pre-1886, conflicts were resolved by clan elders by use of customary law (XEER) and the Islamic religious law, Sharia. Sharia was applied with adjustments that reflected customary influences. The Somaliland British Protectorate period, 1886-1960, witnessed the introduction of common law. During that period customary law, Sharia, and common law operated within the context of defined areas of subject matter jurisdiction: customary law was applied to resolve conflicts between Somalis; Sharia was applied to resolve conflicts of succession and family matters; common law was applied to non-Somali conflicts. If penal, the Indian Penal and Criminal Procedure codes were applied; if commercial, common law commercial law principles were applied.

Like Somaliland, the Somali clans in northeast and southern Somalia, prior to Italian colonization, resolved their conflicts by use of customary law and Sharia. In 1893, with the establishment of The Italian Somaliland, civil law was introduced as an additional legal system. During the initial years of The Italian Somaliland, customary and Sharia law were allowed to resolve cases that concerned Somalis. Prior to decolonization in 1960, Italy enacted laws that established Kadis Courts and later limited the use of customary and Sharia law to matters of the concerned Muslims. Other controversies were resolved by use of Italian civil law in the formal court system.

With the introduction of Somaliland legal orders in the Somaliland, the British imposed the English common law, but they recognized the efficiency of customary law in the lives of the people and thus did not discard it. They allowed it to exist side by side with the received common law and statute law. In Akils courts, customary law became the principle law applicable and administered and because these courts were manned by local chiefs who know the customary law governing their communities.

Long before the advent of the British as a colony master, the ancestors of the inhabitants of modern-day Somaliland developed several rules that governed their day to day relationships. These rules were accepted as binding on all members of the community; hence customary law has been described as “mirror of accepted usage.” These rules were handed down and disseminated orally from one generation to another. Thus, they are invariably unwritten, partially written, and not codified as they only come to be ascertained by oral evidence. These rules are what we know today as customary law. The legal systems of Somaliland are regulated by the Constitution of the Republic of Somaliland, which is the main legal pillar and all other official laws come under the constitution. Upon reasserting its sovereignty in 1991, the Somaliland government under Article 130(5) of the Constitution clearly stipulated that:

“All laws which were current, and which did not conflict with the Islamic Sharia, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland.”

At the conclusion of the British and Italian colonization of Somalia in 1960, the two former colonies united to form the Republic of Somalia. Amongst the many challenges facing the newly established nation was the unification of the two legal systems, each with its own approach to the application of customary and Sharia law, which also included four sources of law: Customary, Sharia, Civil, and Common law. Essentially, the challenge called for fashioning a system of conflict resolution that gave due consideration to compelling political and legal imperatives of that point in time. The new government legislature brought closure to the matter when it adopted the Italian Penal and Civil Code (civil law), and the Indian Criminal Procedure Act (common law). The legislature also passed the June 1962 Organization of the Judiciary Act (The Act). The Act established a hierarchy of courts, with the District Court serving as the principle entry point to the formal legal system. The Act gave the District Court subject matter jurisdiction over controversies arising under customary and Sharia law. Accordingly, the four sources of law were duly accommodated by the new government.

During the Siad Barre regime, 1969-1991, many laws were revised, initially to embrace Socialist legal principles, and later to advanced dictatorial policies of the regime, which contributed to the onset of the Somali civil war which concluded with the removal the Barre regime. Somaliland declared its independence on 18 May 1991. On 18 June 2001, the Somaliland Constitution became effective. Article 130 of the Constitution brought into effect all Somali laws in existence prior to the adoption of their Constitution, provided that those laws do not contradict; the constitution, the Sharia and do not contravene international human rights law.

1.2. Pre-Constitutional Structure of the Government of Somaliland

The Constitution of Somaliland provides for a hybrid system of governance that combines traditional and western institutions. In a series of inter-clan conferences, culminating in the Boorama Conference in 1993, a clan-based government was constructed, which consisted of an Executive, with a President, Vice President, and Council of Ministers, a bicameral Legislature, and an independent judiciary. The traditional Somali council of elders was incorporated into the governance structure and formed the upper house of the legislature, responsible for selecting a President as well as managing internal conflicts. The government became a "power-sharing coalition of Somaliland's main clans," with seats in the Upper and Lower houses proportionally allocated to clans according to a predetermined formula. In 2002, Somaliland finally made the transition to multi-party democracy. The local council elections were contested by six parties and were considered the most peaceful in Africa for twenty-four years.

Somaliland's system of government is a multiparty electoral democracy featuring a bicameral parliament. The President, Members of the House of Representatives and Local Councils have all been chosen through peaceful and transparent elections that have been witnessed and confirmed by international observers (one man one vote).

1.3. The Structure of the State

The Somaliland Constitution provided under article 37 that the people of Somaliland have vested their sovereign powers, as set out in this Constitution, in a state founded on, and which shall act in accordance with, the Constitution. Article 37(2) has mentioned that the structure of the state shall consist of three branches, which are the legislative, the executive and the judiciary. The separation of powers of these branches shall be as set out in the Constitution. Each branch shall exercise independently the exclusive powers accorded to it under the Constitution

1.3.1. Legislative Branch

The Somaliland Parliament is bicameral; the upper house of Parliament is the House of Elders (Guurti in Somali), and the lower house of Parliament is the House of Representatives (Wakiilo in Somali) as mentioned under Article 38 of the constitution. The House of Elders is not elected directly, but rather selected from the people as mentioned Article 58 Section 1 in the Constitution. The House of Representatives is elected democratically by the people. Both Houses of Parliament have the same number of seats, but the House of Elders has honorific seats which do not confer voting power to their holders. The current House of Representatives consists of 82 members. The Speaker, the Dirst Deputy Speaker and Second Deputy Speaker lead the House of Representatives. The other remaining members of Parliament are members of eight committees which compose the House of Representatives. the House committees are:

1.3.2. Executive Branch of the State

The executive branch of Somaliland is the highest organ of executive power as provided for in the constitution.[2] Theexecutive branch (sometimes referred to as “the Government”), shall be headed by the President and shall consist of:

1.4. Referendum on Constitution in 2001

In 1997, Somaliland adopted an interim constitution at the Hargeisa Conference with a schedule for the establishment of political parties and holding of democratic elections. This led Somaliland to become a truly functioning constitutional democracy. On May 31, 2001, a constitutional referendum was conducted, which was effectively a vote on the status of Somaliland as a sovereign state. About 1.18 million people voted in the constitutional referendum, with an overwhelming 97.7 per cent of the voters approving it.

1.5. The Electoral System

The electoral system of Somaliland is managed by the independent and impartial National Electoral Commission (NEC). In 2000, the first NEC was appointed and soon organized the first three elections: the local council elections, the first Presidential election, and the Parliamentary elections. The NEC comprises seven commissioners. In order to meet international standards, an electoral system should be characterized by inclusiveness, simplicity, legitimacy, fairness and accountability (International IDEA, 2002). The Somaliland constitution defines a political system that is based on a democratic multi-party structure, in which the head of state, parliament and district councils are directly elected by the public through a secret ballot. As such, the last outcome of the 2010 election included a peaceful transfer of power, demonstrating the increasing capability and willingness in Somaliland to move forward with the democratization process which is based on “one man, one vote.”

1.5.1. Elections Legal Framework

A legal framework for elections will typically include the Constitution, electoral law, and other legislative acts relating to other aspects of elections, agreements among the main stakeholders on the conduct of elections and codes of conduct for political parties, for election officials and for election observers. Further, Somaliland recognizes its international obligations and is bound by those human rights treaties the Somali Republic acceded to or ratified and has formally confirmed its compliance with them in the Constitution. The Republic has also confirmed that it shall implement in Somaliland other human rights treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, Article 25), including but not limited the 1966 International Covenant on Civil and Political Rights (ICCPR, Article 25). Accordingly, the legal framework that governs the elections in Somaliland can be classified as electoral laws and codes, such as Law No 37/2007/(2014) on Voter Registration, with amendments and additions; Law No. 14 on political parties; National Electoral commission; Presidential and local elections law (Law No. 20); House of representative Election law(Law No 21); and House of Elders' Selection Bills. In recent years Somaliland has developed several election regulations such as Voters’ Registration Implementation Regulations No. 01/2015, and additionally, some guidelines (Voters’ Registration Code of Conduct for the Political Parties.

Somaliland's NEC is responsible for conducting voter registration and maintaining the voter register. The right to vote and be registered as a voter is guaranteed under Article 22 of the Constitution of Somaliland. Citizenship is a requirement for voter registration. The procedure for registration of voters in Somaliland is contained in the Presidential and Local Council Elections Law, 2001. The NEC is responsible for managing all the crucial aspects of elections, including registration of voters, delimitation of electoral boundaries, conducting voter education, and setting a specific election date in line with the Upper House’s (Guurti) decision on the term of the incumbent. The NEC draws its own budget and is accorded financial and administrative autonomy in the discharge of its mandate.

Accordingly, Somaliland has successfully managed elections with the mandate of the independent institution for elections (Somaliland Electoral Commission). The National Electoral Commission of Somaliland (NEC) is the body charged with the responsibility of managing and supervising elections in Somaliland. It is established under Article 11 of the Presidential and Local Council Elections Law No. 20. Based on that the 2017 presidential election was the sixth poll held in Somaliland since 2002, following the two previous presidential elections in 2003 and 2010; one parliamentary election (lower house) in 2005; and two local council elections in 2002 and 2012. Each election was observed by members of the international community. Their assessments have been largely positive, albeit with significant caveats (Adan Yusuf Abokor et al., 2006; Kibble and Walls, 2013; Lindeman and Hansen, 2003; Rip and de Wit, 2003; Simkin and Crook, 2002; Walls and Kibble, 2011).[3]

1.6. Geography

Somaliland is situated on the eastern horn of Africa and lies between the 08°00'-11°30' parallel north of the equator and between 42°30'-49°00' meridian east of Greenwich. It shares borders with the Republic of Djibouti to the west, the Federal Republic of Ethiopia to the south, the Puntland region to the northeast and Somalia to the southeast. Somaliland has 460 miles (740 km) of coast, the majority of which is along the Red Sea. Somaliland is slightly larger than England, with an area of 137,600 km² (53,100 sq. miles). Therefore, the defined territory of Somaliland was clearly mentioned under article 2(1) of Somaliland constitution, which states, "The territory of the Republic of Somaliland covers the same area as that of the former Somaliland Protectorate and is located between Latitude 8’ to 11’ 30’ north of the equator and Longitude 42’ 45 to 49’ East; and consists of the land, islands, and territorial waters, above and below the surface, the airspace and the continental shelf.”

1.7. Economy

Somaliland's primary export is livestock, estimated at 24 million heads per year.[4] In 1996, 3 million heads of livestock were exported to the Middle East alone. A February 1998 ban on beef imports by Saudi Arabia significantly harmed this industry. However, the ban was lifted in December 2006, which allowed the industry to recover. Other exports include hides, skins, myrrh, and frankincense. Agriculture is generally considered to be a potentially successful industry, especially in the production of cereals and horticulture. Mining also has potential, as there are many diverse mineral deposits in the country, although currently the industry consists solely of quarrying.

Accordingly, the confirmed research shows that the country has large offshore and onshore oil and natural gas reserves. Several wells have been excavated during the last few years, but due to the country's unrecognized status, foreign oil companies could not invest in them. This has caused a wide range of problems which may affect the stability and sustainability of the peace and democracy that has been achieved by Somaliland since its secession.

In line with this, the recent National Development Plan stated that there are seven priority sectors identified as critical to the economic development agenda. These are:

1.8. Somaliland Investment

According to the above economic developments, Somaliland is signalling to all potential investors that it is “open for business,” having progressed from a post-conflict situation to a state of political stability and sustainable economic development. Therefore, in order to develop the national economy, trade relations, and investments, the government of Somaliland has developed and enacted special laws, such as the Company Laws (Law No80/2018), Commercial Law, Foreign Investment Law No 29/2014 and etc.

According to investment and general laws, including constitutional provisions, the management of the national economy shall be the duty and responsibility of the Somaliland government, which shall lay down economic policy based on the principles of free enterprise and the joint working of private property, public property, the national wealth and foreign investment so as to realize the growth of productivity, the raising of the standard of living, the creation of jobs, and, in general, the advancement of the economy of the nation. Therefore, in order to ensure that the economic system does not lead to the exclusive enrichment of a group or a small section of the public, and to avoid the creation of economic classes consisting of those who are prosperous and those who are not, and the widening of the economic gulf between the urban and rural communities, the state shall ensure that social benefits and economic opportunities are provided in a just and equitable manner.

For that reason, Article 11(3) of the Somaliland Constitution states that, “The state shall ensure the security of foreign investment in the country, which how the state emphases the protection of foreign investment.” Although this provision of the constitution has clearly provided legal protection for foreign investor at the sometime, there is special law for Promotion, Protection and Guarantees of the Foreign Investment law of law no29/2004. Additionally, under this law a foreign investor is any foreign juridical or physical person. Also, Article 3 provides foreign investment forms in a different wording which is not clear. This law requires from both juridical physical persons/investors that any form of investment shall be made for the purpose of the establishment or the expansion of an enterprise incorporated and registered in Somaliland. This means any investment firm shall be incorporated accordingly and as per required by the company law. Furthermore, this law provides and measures the extent of legal protections of property, for example, the protections of investors against looting by company directors or the range of assets that can be used as collateral according to secured transactions laws. Another advantage for the foreign investment is that a set of indicators documents the tax burden on businesses.

Furthermore, there are different legally mandated institutions such as ministries and institutions to implement different laws relating to economic development; for example Ministry is also responsible for the formulation and implementation of the Government progressive policies on matters pertaining to trade, investment and protection of the interest of consumers, in such a way that it will contribute positively towards the further development of the Somaliland economy and the well-being of the population of the country.

Accordingly, since Somaliland became autonomous, there has been relative peace in the entire country. The prevailing security and peace has encouraged business investments by both the local and other major multi-national companies. Peace in the region has encouraged international organizations to operate freely without hindrances. For this opportunity, in 2016, DP World won a 30-year concession with an automatic 10-year extension for the management and development of a multi-purpose port project at Berbera. The Port of Berbera opens a new point of access to the Red Sea and will complement DP World’s existing port at Djibouti in the Horn of Africa.[5] DP World will set up a joint venture with 65% control together with the government of Somaliland to manage and invest in the Port of Berbera. The investment of up to $442 million will include a first phase of a 400-metre quay and 250,000 square metre yard extension, and gantry cranes and reach stackers to handle containers and cargo. Construction of the quay extension is expected to start 12 months after the satisfaction of the terms and conditions of the agreement and will take 24 months to complete.

Total investment of up to $442 million will be phased over time and be dependent on port volumes and will create a regional trading hub along with the scope for a free zone. The project will focus on containers with the capability to handle other types of cargo and will be implemented with the government of Somaliland.

1.9. Somaliland Tax Laws

The first system of taxation was imposed in the 1950’s by the British Somaliland protectorate. The principle form of taxation was an import and export duties (indirect tax); there was no income tax and the direct tax was assessed only 10% of the annual rental value of the property. But in the current modern stage, the legal framework that regulates the tax system in Somaliland can be found in the following enacted national laws:

Therefore, the constitution of Somaliland under article 14 clearly states that: “Taxes and Duties, the imposition of taxes and other duties shall be based on the interests and wellbeing of the society.” Therefore, no taxes or duties which have not been determined by law shall be collected. Furthermore, paragraph 2 has also stated that the levying, waiving and changing of taxes and other duties shall be determined by law as shown under paragraph 3 of the Inland Revenue Law No. 72/2016. On the other hand, Somaliland has public finance laws, which were all based on previous tax laws during the protectorate laws and after independence since 1960. In this regard Somaliland recently produced four laws, those are currently in force deal with the management of the public finances, customs, Inland Revenue, the State Auditor and public procurement. For that reason, the inland revenue law has clearly provided with the aspiration of Somaliland constitution, where section 4 provided that taxation shall be legally based and that every person is obliged to pay the taxes for which the person is liable. No one may be required to pay taxes that are not provided for by this Act.

1.10. Forms of Doing Business in Somaliland

A fundamental premise of businessis that economic activity requires good rules, include rules that establish and clarify property rights, and rules that increase the predictability of economic interactions. Moreover, there are several legal types of doing business in the areas of business and investment in Somaliland as we explain it in detail into the below following sections.

Before the inception of existing different forms of doing business in Somaliland, it is traced back into 1993, at the time of the right to form business association which was adopted, this association were given to the name of Somaliland chamber of commerce, industry and agriculture which was established on 25th October 1993 under the Public Law No. 35, as an independent entity owned by the business community. The vision of this chamber was to forge new bonds of commercial cooperation and opportunities between Somaliland and the rest of the world and to make the country a world class trade market. Apart from that, this chapter was offering and still offering guidance and assistance in all types of businesses and to assist exporters and importers in local and the international arena through the provision of market information, training and organization of trade events and opportunities.

The status of the Somaliland Chamber of Commerce is a business organization, which is independent from government, and whose membership is open to all business firms/entities engaged in trade activities by both local and international investors.

1.10.1. Legal and Regulatory Framework for Forming or Doing Business in Somaliland Company/Corporation Forms

The forms of doing business in Somaliland can be all found in company, trade and investment legal frameworks; these law include but are not limited to forms of corporation/company export, contractual agreement modes (licensing, franchising) and foreign investment (joint venture [JV] and wholly owned subsidiaries). Therefore, before we can classify these entry modes for doing business in Somaliland, it is essential to read its historical background which will help us to understand how these laws regulate the existing forms of doing business in Somaliland. First and foremost, let us see that the Indian Companies Act 1913 was extended to the Somaliland Protectorate in 1947 under the Somaliland Indian Companies Act 1913 (Application) Ordinance (No. 18 of 1947). This Act was itself based on the English Companies (Consolidation) Act 1908.

During and after the union between Somalia and Somaliland, no dictated company law was enacted; only the civil Code (which is still applied in Somaliland and was based on the Egyptian Civil Code) touches on aspects of company law by, for example, confirming that “commercial and economic corporations or companies” have legal personality (Article 52(3)) and were therefore entitled to the rights of “juristic persons” listed in Article 53[6] of the Code, such as the rights to own property, have legal capacity and to sue and be sued, and have its own domicile. The Code dealt with many other issues, including contracts and other obligations as well as issues of insolvency, but in ways that apply to all legal and individual persons. The Code covers very briefly issues of conflict of laws.

Types of the Company According to Company Law 2004

Formation of National Company: Somaliland Company Law 2004 states that there are two types of companies recognized in the law: companies limited by share and companies limited by guarantee. The law also provides for unlimited companies, which can be either public or private with the condition that it has been formed by 7 persons or more or it has been formed by two or more, respectively. Therefore, according to Section 26 of the law, the difference between the latter two types being that a private company is one which restricts the right of transfer its shares; limits the number of its members to 30 (excluding employee members), and prohibits any invitation to the public to subscribe for any shares of the company.

Formation Foreign Companies: The other type of companies regulated by this law are foreign companies incorporated outside Somaliland which have established a place of business in Somaliland and must therefore apply to be registered as a foreign company in line with Articles and 292 and 293 of the Law.

Corporation Form: Company Law 2018 repealed the previous existing Company Law25/2014; this law is currently published and implemented accordingly as commented by Ibrahim hashi; “A new Somaliland Companies Law (Law No. 80/2018)[7], apparently based US Corporation Acts (reportedly, on the advice of World Bank experts) has been promulgated with effect from its publication in the Somaliland Gazette on 1 September 2018. It has been said that this is a more simpler and modern law, but the change might, in our view, lead to the loss of the case law and regulatory developments that were readily available from the many nearby African, Middle East and Asian countries, with which Somaliland has long commercial links, that have British based companies laws. Access to the US regulatory and case law interpretation of the similar Laws (be it the Model Law or whichever state corporation Law this Law was upon) will therefore important for its successful implementation.” Consequently, this new law defines the contextual meaning of “company” as a company established under this Act or previous established company before the implementation of this act.[8]

Foreign Entity as Incorporation: In Somaliland the foreign entity/company can be found in Part Four of the newly enacted Somaliland company law, which provides provisions relating to the foreign entities and foreign companies as well including authority to transact business, as well as statement of foreign entity or how to conduct activities.[9] Furthermore Article 100 of the act articulates consequences of transacting business. Additionally, another important legal aspect is how withdrawal of foreign entity be considered as mentioned under art 106 Application to existing foreign entities. Agency

A company may have one or more officers or agents who have the right to work. The rights, duties and authority of the company is stipulated in article 37 of the new Somaliland Company law. Furthermore, under different laws of Somaliland, agents are considered people or businesses, where the term of agent is often used as generic term to describe either an agent or a distributor. On the other hand, the basic parties involved in this contractual liability are usually: The Principal/Exporter, the Overseas Intermediary (Agent or Distributor) and overseas buyer or end-users. In this regard, the agency definition and its legal operation has been mentioned in Somali civil code as well as the classification of trading business law No26/2004 as stipulated in article 5 of that law. Contractual Contract (Licensing and Franchising)

Licensing and franchising are contractual arrangements whereby a license or franchiser allows a licensee or franchisee to use its intellectual property in return for a fee or royalty and, in some cases, an initial payment. The two parties are independent businesses but have engaged in a contract for a specified period. The licensing in many of Coca Cola’s bottling operations, for example, are licensed to independent companies in its foreign markets. Franchising is more common in service industries such as retailing, tourism, catering, and hospitality. It usually involves the use of a method of doing business, including not only a brand name but also corporate advertising, training, and other support services. Perhaps the best-known franchise is McDonald’s, but other examples include the Body Shop, Benetton, and Holiday Inns.[10]

In Somaliland, different modes and forms exist as contractual agreements, such as Aramex Company, Arabia airline, DP World agreements, and Djibouti telecom with Somcable Company which has also incorporated as a company operating in Somaliland

Export Licenses: In Somaliland, export shall be classified into two forms: individual and corporate. These will apply to all investors who would like to invest in the export trade. The documents required for issuance of export licenses are A) individual traders; and B) corporate traders. The individual traders shall identify an individual about all required documents to be shown for registration, while the corporate traders are mandated to submit to the Somaliland Chamber of Commerce the following documents:

Joint Venture isanother form of doing business in Somaliland. The joint venture mode, which is based on an agreement between two or more companies involving joint equity ownership and control is described as a joint-venture or joint-venture agreement. Because a degree of control is involved, it may also be classed as a form of FDI.

Distributors: The distributor has also mentioned in different laws with different terms for example Somaliland classification trading business law 26/2004 when considering the difference between import trader, export trader, wholesale trader and retailer. Also, Somaliland investment law provides that contracting parties must sign an agreement between Foreign Investment Board of the Government of the Republic of Somaliland and the contracting foreign investor. Thus, the investment law states that distributed companies are associated under the contract with the parent and distributor. There is not any control on the distributor for the undertaking of its business operations.

Subsidiary: Another existing form of doing business in Somaliland is via a subsidiary controlled by an existing parent company. This form enables the establishment as a separate entity controlled by an existing parent company. This form of doing business in Somaliland is recognized under Somaliland company law; it only requires incorporation or merging as the case may be and that is why more companies are named as a group of companies such as MSG Group, Telesom Group, and Dahabshiil Group.

Legally speaking, all these companies are establishing an autonomous business enterprise and come under the control of its existing parent company or parent in name only; it shall be under umbrella of the Parent company. This mode assumes that the entrepreneur is operating in his own country through a company which he owns and controls and that he would be using it as a vehicle to venture abroad. This would be the holding company (or parent company) that will incorporate a new company under the domestic laws of the foreign country. Such a company is known a subsidiary company.[11]

1.11. Somaliland Chamber of Commerce

The Somaliland Chamber of Commerce, Industry and Agriculture was established on 25 October 1993 under Public Law No. 35 as an independent entity owned by the business community. The Chamber of Commerce is a business organization independent from the government. It is an organization whose membership is open to all business firms/entities engaged in trade activities. The chamber welcomes both local and international investors. Application for membership to the chamber is made directly to the Secretary General, subject to the applicant agreeing to be bound by the memorandum of association.

1.12. Banking and Finance Laws

the Republic of Somaliland has enacted several laws relating to the Banking and Finance laws including commercial law, Islamic banks and other financial institution related laws such as money transfer Business law. These laws are enacted in the following years accordingly; for example, the Somaliland Central Bank - Xeerka Baanka Dhexe - Law No. 54/2012 was signed by the President on 12 April 2012 and went into force on that date. The Bank is essentially the Bank of Somaliland which was established in October 1994 under a constitutive Law.

The Law on Islamic Banking was approved by the House of Representatives on 19 September 2012 and the President signed the Law on 3 October 2012 (Decree No. 0270/102012). Additionally, The Somaliland Money Transfer Businesses Law No. 86/2019 came into force on 2 May 2019 but was gazetted on 1 June 2019. A copy of the law in the gazette is available online, as are an SLLaw copy of the arrangements and separate arrangements of the law in Somali and English.

1.13. Land Tenure

All land in Somaliland belongs to the state of Somaliland and the authority to manage and appropriate land shall lie with Somaliland Government. In this context the land is a central category of property in Somaliland; it is the principal source of livelihood and material wealth. Hence, the current Somaliland constitution has clearly stipulated in article 12(1) that land is a public property commonly owned by the nation, and the state is responsible for it.

The current legal regimes over the land management are characterized by significant complexity on the land ownership and its management where the Somaliland traditional legal orders exist in a state of legal pluralism whereby customary law (xeer), religious law (shari’a) and secular law operate simultaneously.

Some studies show that these three legal orders are operating simultaneously, whereas generally speaking today, the legal framework for Somalia’s land tenure system is a mix of secular, Sharia, and customary Xeer law. This legal pluralism has often provided a flexible structure that local actors have used to craft appropriate solutions, but it has also left grey areas within which conflicts begin. In order to reduce potential clashes and raise incentives to invest in the country there is a need for a greater transparency and certainty in its land tenure regime through harmonization, reform and transformation.

As noted by Woodman,[12] Legal Pluralism may be defined as the condition in which the population observe more than one body of law. So long as there is some observance within a population, even of a slight degree, a body of norms may be considered as law for this purpose.

Therefore, in this context we can say Somaliland can be labelled as a hybrid legal system, where the expression of legal pluralism denotes the concern with the coexistence of different forms of law. Legal pluralism is also opposed to the legal borrowing by one political or social body from another, in this regard, professor Salvatore Mancuso[13] explains in his article of African law in action[14] that the expressions “legal pluralism” and “legal syncretism” are used to describe the encounter between western legal culture based on written rules and the oral African tradition. This encounter created a hybrid legal system based on tacit compromise and the formal subjugation of African legal traditions to western law. An essential element of this hybrid system is the resistance of African legal traditions to the attempt to subjugate them, and their capacity to adapt themselves to the changes occurring in African societies.

Accordingly, as noted, customary law (xeer), religious law (shari’a) and secular law operate simultaneously, and each applies to land ownership.

The Customary Law (Xeer), practically customary law, is a highly specialized institution adapted for administering, managing and regulating common property such as pasture, grazing land, forests and water in most of the rural areas. The elder’s court of the clan constitutes the source of Xeer and has the role of the supreme guardian. Somaliland traditional elders have had and still have important roles to perform in land allocation and land management in rural areas, because in this context traditional authority (Suldan, Aqil and headmen of the village) has a power over their communities and the everyday affairs of the village life.

Secular Law (State Law, formal law often called official law) is more complex to evaluate as most of the laws are ineffective and are not used widely; most of those that are applied are inappropriate and highly inefficient. The British colonial authorities introduced modern urban land administration in Hargeisa and Burao, as they started to issue entitlements for residence, commercial and farming properties in the emerging towns. With the first constitution of the Somali Republic, issued in June 1960, all land became nationalized and managed by the administration. Under the democratic government, which in general had a liberal economic agenda, land transactions in urban areas increased, and in Hargeisa and Burao a small real estate market developed. This trend continued during military rule. Urban land could be leased for an unlimited period, but the state held several legal options to revoke these agreements (APD 2010). Due to corruption and nepotism, those with close ties to the ruling elite were often able to get access to valuable plots in the country’s main urban centers. Nevertheless, the decline of proper land management system has followed due to the disintegration of its institutions in 1991.

As noted earlier the applied laws governing on land issues and other laws relating to exploitation of natural resources were different in part of Somali republic. In this regard after long discussion among united parts of Somalia it was issued a special law relating to state ownership of agricultural lands (Law No.4, 1967). Then after that Somali government introduced a land reform commission in 1965 in order to advise the government on land policy, the Land Reform Commission was appointed on May 9, 1965. Their mandate was to report land development and deal with agrarian development, including demarcation, clearance of land and settlement of Nomads, and agrarian reforms including a land tenure system, tendency, rights, land ceilings, prevention of fragmentation of land and protection of the interests of workers and landless labourers and land taxation. In this regard the first draft law was introduced in 1966 on the basis of the recommendations of Land Reform Commission, where then the government submitted to the National Assembly in 1966, the content and jurisprudence of this law was followed by Italian pattern, which divide the land into demanio, i.e. state owned land and private land, the state land can be further divided into public patrimony and public domain.[15]

Somaliland’s existing system of land tenure introduced agricultural law and urban land management in 1998 and 2001 respectively. Furthermore, another challenge is that copies of the laws of both the former Republic of Somalia and the British Administration appear to be unavailable, because some laws were destroyed during the civil war or respondents in this study were unaware of their whereabouts or whether they exist in Somaliland; this includes Somaliland Charter 1960-1 which set up the Town Planning Board and the Surveying and Mapping Board post-independence. In this regard some sources indicated that the title deeds registration system provided for by the Registration of Documents Ordinance (Cap. 82 of the 1950 Laws of the Somaliland Protectorate) is a much simplified system of registration designed to assist the operation of the land market and would be satisfactory for Somaliland in foreseeable future.

The Islamic Law should be viewed as the primary source of law in Somaliland, where Sharia has been officially recognized within the constitution (Article 5). However, sensibly, Islamic law governs mainly family related issues as marriage, divorce and inheritance.

Apart from the Constitution of 2001, the current land management system in Somaliland has been built upon the system established during the pre-war government and aspects from these three legal systems remain. Family laws remain under Sharia principles while rural land is mainly ruled under Xeer, and criminal laws under secular system. Although the application of each system in Somaliland context has resulted in an influence of the customary law and sharia principles in the rural areas, on the ground, formal law and the related institutions have the greatest influence in urban areas. In Hargeisa, the steps for recording the transfer of a property are well documented in a recent World Bank report. Overall, Hargeisa’s system ranks 79 out of the 183 countries surveyed in terms of speed, cost, and complexity – better than many countries in Sub-Saharan Africa, but below the most internationally competitive developing countries. In addition, the transfer of land is not fully secure as it is very difficult to ensure that there are no prior claims to a property. This is a function of the fact that the property registry is not necessarily updated when a new transfer is recorded.[16]

The current Somaliland constitution stipulates in Article 12(1) that the land is a public property commonly owned by the nation, and the state is responsible for it.[17] This law means that all land in Somaliland belongs to the state of Somaliland and the authority to manage and appropriate land shall remain with Somaliland Government. However, it must be noted that over the last two decades most of the land in urban areas have been grabbed for illegal settlement and source of income by the occupant communities. For depth analysis of the Constitution, the following steps were observed and considered. Findings and challenges exist within the legal framework of the constitution and they are as follows.

An effective regulatory framework is key to successful Constitutional reform in land governance and harmonization of the existing laws, there must be a quick response to harmonize existing land laws in a way that harmonizing the available inconsistent and does not contradict legal and organizational frameworks. On the other hand, while new laws or amendments are continually being passed by the legislature, the old laws are often not repealed. Provisions of old laws are merely superseded, replaced or amended by the new laws, and this system allows the old laws to retain their residual validity in whole or in part. Therefore, an effective constitutional reform should include the following steps:

These related laws on the land issue are included:

As such the current Constitution does not recognize the uniqueness of land and lumps it with other categories of property. Where the constitution of Somaliland titled in Article 12 public assets, natural resources and indigenous production, which says that the land is a public property commonly owned by the nation, and the state is responsible for it. This means that the all ownership and administration of land in Somaliland belongs to the government of Somaliland that reserves the authority of its management, transfer of ownership and proposition to enact laws for its governance. In this regard this provision of the constitution is contrary to the principle of the Islamic Sharia which states that the ownership of land belongs to Allah[18], even though the constitution of Somaliland was based on the Sharia as per Article 5 of the constitution which stipulates that the laws of the nation shall be grounded in and shall not be contrary to Islamic Sharia.[19]

Urban Land Management Law No.17/2001: The Land Management Law No. 17 covers the allocation of land, the planning and control of development of land, aspects of land tenure including registration of title, appropriation of land for public use and compensation, demolition of buildings, land disputes mechanism, and building regulation. The land is owned by the Republic of Somaliland and its management, transfer and lease proposal is the duty of the government, which should pass decree for public purposes.[20] It is noted that public purposes do not include allocating land for urban poor under this Act. The Land and Urban Planning Institute under the National Urban Planning Committee chaired by the Minister of Public Works is in charge of the creation of the urban land physical plans.

Following the above laws regulating the ownership of the law, some provisions of law No. 17 have been criticized for setting up, under Article 28, a quasi-judicial committee chaired by a District Judge for dealing with disputes about urban land, but appeals against their decisions go to the Regional Court. This has now been amended and the disputes are now dealt with by Administrative Urban Land Disputes Committees that consists of 7 members, where 5 (including the Chairman) are appointed by various central government ministries and 2 are nominated by the district local authorities. Appeals against the decisions of the administrative committees, as in all challenges of administrative bodies’ decisions, lie with the Supreme Court within a very short time limit of one month. The committees will be based at the premises of the district councils and the Minister of Interior is given a power to issue regulations relating to the allowances of the members’ fees, the applications to the committees, their procedures and execution of their final decisions. Whilst this amendment makes it clear that the decisions on land disputes will now be taken by central and local government officials, and not, as previously, by a quasi-judicial body, the only appeal route to the Supreme Court. Additionally, the function of the Land Conflict Management Committee and its relations to the judicial structure are not obvious. For instance, it is not clear when the committee is to be called upon and how its decisions are to be considered by the courts. It is said that the committee is only a witness in the court, but its decisions are nevertheless binding. In fact, the functions of the committee is the jurisdiction of the courts of law and the sphere of their authorities, thus putting the binding quality of their decisions, while some of the constitutional right to appeal is partial which is also a defect to this law. In this regard the Director General of the Ministry of Interior prepared preliminary draft of land dispute procedural regulation which is not yet implemented but in the process.[21]

Regions and Districts Law (Law No: 23/2002): The main law governing Somaliland local government is the Regions & Districts Law (Law No. 23/2002), which was added to extensively in 2007, but retained the same title and number. The amended Law now runs to 105 Articles and a schedule. For the Somali text of the amended 2007 Regions & Districts with annotated comments by Ibrahim Hashi, see Somalilandlaw.com.[22]

According to Law No. 23 of 2002, district authorities under the Ministry of Interior are in charge of internal security and law enforcement (Articles 10, 13, and 34) and at times are involved in quelling land disputes that have become violent by restoring law and order, as well as mediating between disputing communities. Furthermore, the district councils are also responsible for the allocation or planning of new land schemes in their areas of jurisdiction (article 20 and 34). Article 24 gave the mandate to propose, in accordance with the law, the appropriation of privately-owned vacant land for public interest reasons, which means that the district authority has a role to manage the land in the private owned vacant land for public interest reason. Additionally, when to be enforced the land and its implementation shall be guided the regulation issued by Ministry of Interior where Article 54 states that the Ministry of Internal Affairs shall issue regulations detailing the implementation of this Law.

Therefore, both Law No. 17 and Law No. 23 of Urban Land Law and Regional and District Law mandate to the minister of interior to issue regulations to implement these acts.

2. The Political System

The 2001 referendum of the Constitution of Somaliland established a new democratic system. The political system in Somaliland is based on presidential rather than parliamentary system. A presidential system was chosen because the parliamentary system proved to be unable to deal with the constraints imposed by clan-based politics.

Accordingly, the country has a republican form of government. The legislative assembly is composed of two chambers– an elected Elder’s Chamber, and a House of Representatives. An elected President and an elected Vice-president head the government. The President nominates the cabinet which is approved by the legislature. There is an independent judiciary.

The country has three political parties. i.e Waddani Party, Kulmiye Party and UCID party. The current President of the Republic is H.E Muse Abdi Bihi and the vice-president is H.E Abdurrahman Abdillahi Ismail of Kulmiye; both were elected on December 2017 for a five-year term. Therefore, Somaliland has three independent branches of state braches; The executive, the legislative and judicial organs.

2.1. Somaliland Nationality and Citizenship

Generally, Somalilanders continue to share common ethnicity, religion and in many cases clan affinity with other Somalis across the entire country – to the west with the republic of Djibouti, to the south with the Ethiopia Somali federal region and to the east/southeast with Somalia. The common national origin is based on the territories within the boundaries, however the link to nationality is that of the Somaliland protectorate, followed by the nationality of the independence state of Somaliland (Somaliland nationality and citizenship law – Ordinance No.15 of 1960).

In this legal historical background Ibrahim Hashi commented on the website of Somalilandlaw.com that with Great Britain’s declaration of a Protectorate in Somaliland in 1886 (and its official notification, on 20 July 1887, of the European Powers in pursuance of by General Berlin Act Conference) that was not confined to the areas where treaties of protection were signed with some of clans, the people of Somaliland acquired a new status of ‘British Protected Persons’ under existing International laws. The British Protected Persons Order-in-Council 1934 which related to Somaliland and 15 other British Protectorates (all in Africa, other than the Solomon islands) defined the persons belonging to the territories ‘that were afforded British protection’ and were known as British Protected persons as “any person born (whether before or after entry into force of this Order) within the territory who is not, at the time of his birth, a British subject, and who does not, at the time of his birth, possess under the law of some other State the nationality of such State. Also persons born out of the territory (who were not, at birth, either a British subject or the national of another State) and whose fathers, at the time of these persons’ birth, were regarded as belonging to the territory (and were themselves born in the territory), could also be regarded as British Protected Persons (s. 2(b)).” The Territory of Somaliland Protectorate was set in various international agreements in the 19th Century and all the boundaries with the neighboring countries (including the boundary with Somalia to the South East) were delineated by the 1930s - see Somaliland Boundaries.

Followed with different periods of Somaliland rebuilding as a nation there were different acts of nationality and citizenship laws, but finally the current law of Somaliland citizenship is law No. 22 of 2002. Also, Somaliland enacted immigration and refugee laws. Finally, although Somaliland is not yet recognized by the United Nations, it has bilateral agreements with other countries in the region such as Seychelles, Ethiopia, Djibouti and others. Therefore, the Somaliland passport is accepted by many countries in the region.

2.2. The Law of the Organs of State

Accordingly, Somaliland Constitution in Article 122 stipulates that there shall be law of the organs of the state and that each special organ shall have a law setting out its structure, responsibilities, and the status of its head. Additionally, Somali Government proposed a new Law in 2015 which set the roles and responsibilities as well as the government administrative structure. To implement that law, in late 2017, the president promulgated presidential decree which was aimed to concise and make government institutions more effective and affordable to outsource further clear legal mandate.[23]

2.3. Legal System and the Sources of Somaliland Law

The main sources of Somaliland laws are:

The Constitution of Somaliland Republic was adopted in Somaliland and came into force and approved by referendum on 31 May 2001, and clearly provided under Article 10(1-2) that the Republic of Somaliland shall observe all treaties[24] and agreements entered into by the former state of Somalia with foreign countries or corporations provided that these do not conflict with the interests and concerns of the Republic of Somaliland. Additionally, the Republic of Somaliland recognizes and shall act in conformity with the United Nations Charter and with international law, and shall respect the Universal Declaration of Human Rights.[25]

The Constitution of Somaliland Republic is the supreme law of the land as provided under article 128, and any law which does not conform to it shall be null and void; therefore all Somaliland laws derive their legal validity from the Constitution and basis of Islamic principles as mentioned under Article 5 of the Constitution. The Constitution contains 130 articles. Chapter One of Parts One, Two and Three provide the fundamental and basic rights, duties of the citizens and particularly recognized fundamental political, social, economic and cultural rights which shall be interpreted in a manner consistent with the international conventions, human rights and international law as clearly provided under article 21 of the constitution for implementation and interpretation.

2.3.1. Legal Systems/Legal Orders

Prior to colonial rule, Somaliland practiced both Islamic law and customary law. Islamic law was not as effective as the customary law. Customary law, referred to as the Somali traditional justice system, was the only widely effective law which existed during the pre-colonial era. Although these two legal systems merged, Somali traditional law was still the dominant law in Somaliland. As a result of colonization, Somaliland adopted the statutory law which was brought by the colonial powers. This statutory law became an integrated with the previous laws which were effective in Somaliland, creating a hybrid legal system in the country. At present, there are three legal systems, all derived from different sources, which regulate both civil and criminal acts.

Civil Law Tradition: Although Somaliland was a British protectorate, the merger with South Somalia altered the legal tradition of the nation. Hence, common law was overruled by civil law. In this point the Somali Civil Code (Law No: 37 of 2 June 1973) entered into force on 1 July 1973. Before this date, the common law and other Somaliland Protectorate and Indian enactments, such as the 1872 Indian Contract Act were still in force in Somaliland (Article 42 of the independent State of Somaliland Constitution 1960).

Sharia Law: Most of the population of Somaliland is Muslim; hence the Islam is very influential on the Constitution and legal system. The Constitution of Somaliland provides that enacted legislation will be deemed invalid if it contravenes the basic principles of Islamic law. Because of this provision, there exist informal courts which deal with certain issues to which Islamic law is relevant, such as marriage, divorce, other family affairs, such as family reconciliation, child maintenance, Nafaqa and succession.

Customary Law: Prior to the colonial era and before Islam became the dominant religion, the Somali people were regulated by customs and traditional values and norms. This traditional justice system is now enforced and entrenched into legislation. Although customary law is not specifically provided for specific article in the Constitution, but the people of Somaliland are still entrusted to resolve their disputes through methods of traditional justice in conjunction with Islamic law.

2.3.2. Classification of Somaliland Customary Law

As per other communities, Somali customary laws were unwritten, whether these rules are general or particular (special), but these unwritten rules were memorized and orally transmitted by the clan elders, particularly, Akils and wise men of the tribe, as were verdicts judges passed from generation to next generation.

As outlined above, whenever the Somalis had to judge a case they used to ask the nature of the case if it was a penal (blood) case (Dhiig) or civil (Dhaqan). In this regard, they also asked again if it was about family or property for giving further reasoning about the case. Why are/were Somali/Somaliland customary laws not written? The answer is derived from three logical reasons:

The lawmakers in Somali customary law are elders and people with knowledge and wisdom, the process they followed for enactment of law related whenever the need arose. The nature of making a law was based on when the tribe, clans and Somalis were confronted with a problem they used to introduce a new law to solve or prevent such a problem. In this regard, whenever a law was adopted it was notified to the whole community and everyone in the villages was bound to abide by it.

As mentioned above, laws and rules are made as a result of a problem within the community. A general assembly of elders and clan leaders was organized similarly. The general assembly was to come and convene in a place with water, around a well or lake. When General Assembly agreed on a convention (law, rule, statute) and approved it, the name of the law is created by using the name of the location where approved or the law is cited as a name reflecting the time period during which the laws were being discussed and approved.

2.3.3. Nature of Somali Customary Law

The nature and essential characteristics of Somali customary law (Xeer) is a system of traditional laws formulated by Somalis over hundreds of years. In the past these laws were special for every specific community, including but not limited to farmers, camel herders, goat herders, hunters, and town dwellers. The most used laws today are:

Xeer functions as an important mechanism in maintaining social relations within and between clans. Xeer is the most accessible, used and preferred system for resolving disputes. The main character of Somali customary law is its long-inherited nature, yet it is more flexible to amend. The application of Somali Customary Law is more accessible to all people (poor or rich; minority or majority) making all Somalis equal before the law. Xeer is more transparent in terms of selecting the jury, following court proceedings, and announcing verdict and its appeal.

2.3.4. Judges in the Somali Customary Law

Judges or jury within Somali customary law were considered to be one of the experienced wisemen in the community. Ordinary cases were judged by any experienced elder, but when a case is of first instance, it must be judged by elders who are considered experts in Somali culture and the law.[26] As such, cases of most seriousness are not entrusted to common elders but are referred to the most ethical and knowledgeable persons in the law. Somali court proceedings follow similar processes within its current modern tribunal, even though such practice has not been institutionalized and understood as structure.

Somali judges apply non-written procedures during their ongoing Customary Law trials. Just as claims were not written statements, procedure was similarly of oral tradition passed on from generation to another because the nature of Somalis is of an oral society.

It is important to note that majority of Somali judges are males. Next, in Somaliland the elders (determined by age) dominate the customary law decision making. The younger members are not allowed to judge if the elders are present. As such, verdicts were dominated by aged people while the young have no role in law making.

2.3.5. Announcement of the Verdict and Appealing Against It

When the jury returns to the court, they announce their verdict. One of the selected jurors announces the verdict and the speaker explains how and why the verdict was reached, along with the points they considered and the precedent and case law they based their judgment on. Before the verdict is accepted and anytime during the court’s proceedings, either party may reject any person suspected of impartiality or bias from the selected jury. In this regard, the two parties or their representatives should be present when the judgement is pronouncing, and they should declare on the spot if they are happy and pleased to accept the verdict or are appealing against it.

2.3.6. Forms of Judgement

The forms of the judgement in both civil and criminal cases of Somali customary law are among the following categories of judgement: either compensation (magdhaw) or moral compensation (xaal or Taqsiir), confiscations of property (Kala wareegid hanta) or immediate payment (Jilib carro) specially murder cases.

Xaal” is a Somali word which designates a compensation given to the offended person whether by word or action. The compensation in the earlier time was most of the time paid in animals since Somali were not living in a monetary society.[27] But today in urban centers, and sometimes in villages, the monetary value is compensated.

Sometimes a bride was given as compensation. In that case the offended man would be told “We have offered you this girl as your wife for compensation.” This would happen after securing the acceptance of the girl and determining that was the best way to compensate an offended man in the Somali culture. Some forced marriages exist in Somali culture. There are concerns about the bride’s rights but also about the legality and enforceability of marriage. In the clan and family relations, women’s consent is essential to recognizing a marriage. Otherwise it is forced.

2.3.7. Enforcing the Judgement

In Somali customary law, there are two ways that a judgment can be enforced. The first is voluntarily, when the party found guilty accepts the verdict and agrees to compensate the plaintiff according to the delivered judgement. The second is compulsory, where the police enforces the verdict by collecting from the guiltily by force whatever the court decided.

As stated above, Somali customary law is based in oral history. As such it presents a good case for traditional legal development. It is difficult to fully summarize the law when the Somali cases and judgements were not written. However, this could be a starting point for further studies and analysis for the coming generations. Somali customary law is different from pastoral society to agropastoral, from north to the south; and some similarities can even be seen in Somali Ethiopia and Djibouti.

3. Special Legal Institutions and Tribunals

Somaliland has not yet adopted special tribunals, claiming that they lack both the financial and human resources necessary to establish such courts. Furthermore, there is currently no enacted legalisation which will establish such courts.

3.1. Somaliland Police

The Somaliland Police Force was established in 1991. Since that time, it has struggled to shed its identity as a remnant of a former colonial police. It remains a militarized institution, relatively inaccessible to the majority of the population, lacking effective management, and its officers are poorly paid, poorly equipped and poorly trained. The Somaliland Police Act of 1993 is outdated, and the applicable Police Regulations are those of 1973 (except in so far as they are inconsistent with the Somaliland Constitution 2001 and the Police Act).

In 2010, the Somaliland National Charter for Policing was agreed upon, with the goal of professionalizing and modernizing the Somaliland Police. The Somaliland Police is a key institution for maintaining Somaliland’s internal security and stability and the Somaliland government has recently committed itself to strengthening the law enforcement sector under the Somaliland National Development Plan 2012–2016.

The reform process currently underway in Somaliland is designed to address these problems through a comprehensive package designed to increase police accountability and enhance policing practice in line with international human rights law and established best practice. The Somaliland Police Force has achieved considerable progress in maintaining public order and combating serious crimes and it has also maintained the support of the community. in this regard, there is currently effort by the president to adopt the accountability and the oversight mechanisms for policing forms which is the core of democratic governance and is crucial to enhancing rule of law and assisting in restoring public confidence in police; to develop a culture of human rights, integrity and transparency within the police forces; and to promote a good working relationship between the police and the public at large. For that reason, although the established oversight is not effective but both parliament and president agreed to include in the new law provisions relating with police accountability and oversight body (See, Chapter 8, Art. 34 of Somaliland Police Force (Amendments and Additions) Law 2019 [Law No. 63/2013-19]).

In 2013 Somaliland police act was enacted and implemented, but in 2018 the Act was amended as Police Act Law no. 63/2013 - 06 January 2018. Finally, there has been a new provisions were included where the newly consolidated Somaliland Police Force (Amendments and Additions) Law (Law No. 63/2013 (2019) which replaced the 2017 law has, as set out in Article 50 of the Law, come into force by its signature by the President on 17 May 2019 and was gazetted in a special issue of the Somaliland Gazette dated 1 June 2019.

3.2. Somaliland Coast Guard Force

The Establishment of the coast guard was aimed to provide safe, secure coastline and contribute towards a sustainable maritime environment, by operating 24 hours a day along the entire coastline of Somaliland to legally enforce Somaliland sovereignty, establish effective maritime domain awareness, counter maritime crime and ensure the safety, security and economic wellbeing of Somaliland and international maritime communities. in this regard the main functions of this law enforcement is included but not limited to:

Therefore, the legal basis for establishment of this coastguard force shall come under the law of The Somaliland Coastguard Force Law - Law No. 85/2018, which came into force on its gazetting on 5 January 2019, gazetted in Somali as Xeerka Ciidanka Ilaalada Xeebaha Somaliland Xeer Lr. 85/2018. All related topics of maritime domain, including fishery Law, Combating against piracy law No 52/2012 [28] and a copy of the law with arrangements of the Articles is available online.

The historical background of this law was also explained and stated on the official website and published reports of EUCAP.[29] The preliminary work in order for the law to be adopted has taken a few years and EUCAP supported Somaliland authorities in drafting the law that was passed on March 2017 by the Cabinet of Ministers. It had to be passed by Parliament and was finally signed by the President in December 2018 and promulgated in January 2019.[30] Furthermore, among the duties of the SLCG[31] are the prevention of illegal fishing; monitoring and prevention of damage to the Somaliland maritime and maritime resources; arresting, detaining and prosecuting of vessels and the onboard crew who violate the Somaliland fisheries law; checking the identity of boats and ships fishing in the Somaliland territorial waters; and prevention of sea pollution.

3.3. Land Tribunal Dispute

Dispute Tribunals established by Law No. 17/2001 are composed of 7 members appointed by the Minister of the Interior. Currently, there are only two functioning Land Dispute Tribunals in Hargeisa and Sahil, Awdal, while others in other regions are in the process of being created.

3.4. The Ombudsman or Public Defender

There is not yet a well-developed understanding of how to establish such an office, which would deal with certain claims against the executive or defending the public interest.

3.5. Somaliland Human Rights Commission

The SLNHRC is an independent Human Rights state institution. It was established by the Somaliland Human Rights Commission Law No. 39/2010.[32] This Law was created via small amendments and then finally approved (again) by the House on 30/10/2010 (Ref GW/KF13/507/2010) and was signed into law by the President on 26/12/2010 (Presidential DecreeNo.0100/2010). This law consists of six chapters with 42 articles.

The members of the Commission were selected by a committee set up under Section 10 of the Law and consisting of 3 members appointed by the President, 2 by the House of Elders and 2 Supreme Court Justices. Following the procedure under Article 10 of the Law, the Committee organised an open competition and selected in order of merit, 14 persons who were suitable for appointment as Commissioners. The President then appointed the 7 Commissioners from the list and the remaining selectees were held in reserve in order of their merit as assessed by the Committee. On 3 April 2011, the President announced the 7 appointees in a presidential Decree (No. 0123/2011) and on 27 June 2011, the House of Representatives approved the appointments on a vote of 49 for and none against or, other than the Presiding Officer, abstaining.[33]

Its core mandate is to further the protection and promotion of HR in Somaliland. Many countries have similar bodies which audit the government on HR. United Nations encourages governments to create NHR commission as a strategy towards enhanced protection & promotion of human rights Since 1948, when the Universal Declaration of Human Rights was signed by most of the countries around the world, countries started to apply its principles.

Article 10 of the Constitution of the Republic of Somaliland states that “[t]he Republic of Somaliland shall observe all Treaties and Agreements entered into by the former State of Somalia with foreign countries or Corporations provided they do not conflict with the interests and concerns of the Republic of Somaliland.” Subsection 1 recognizes the need for conformity with International Law.

3.6. The Status of Sharia/Islamic Law in the Constitution

As provided both under Article 5 of the Constitution and in the preamble of the Constitution, Islam is the state religion. In addition, the primary basis of all legislation is Islam, and every law enacted by the parliament which is not consistent with the principles of Islamic law shall be null and void. In addition to that, the Constitution provided under 130(5) that “All the laws which were current and which did not conflict with the Islamic Sharia, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland.” At the same time, laws which conform to the Constitution shall be prepared, and each such law shall be presented within minimum time scales set by the House.

3.7. Process of Lawmaking

The process of lawmaking is laid out in the Constitution of Somaliland. Article 77 of the Constitution stipulates the procedures and the powers of the different organs of the state in regarding the drafting, adoption, and approval of bills. This article provides the following.

Each House of Parliament shall forward any bills which it passes to the other House for review and advice. Each House may refer a bill back to the other only once. The Parliament shall determine the procedures for the progress of bills and shall make clear the special status of bills relating to finance and those that the Government considers to be urgent, both of which shall be given priority. Any bill passed or approved by a 2/3 majority of both Houses of Parliament may not be referred back to the Parliament by the President, who is thereby obligated to signit. If the President considers the bill to be in conflict with the Constitution, he shall inform the speakers and the Attorney General, who shall refer it to the Constitutional Court. The President shall sign any bill forwarded to him by Parliament within three weeks of receipt of the bill, provided that he has not referred it back to Parliament. If the President fails to sign a bill forwarded to him by Parliament within the required period, and has not referred it back to Parliament, then the bill shall henceforth become law, and shall be promulgated by the House which had forwarded it to the President.

All bills passed by a majority of members of the House of Representatives, other than those relating to finance, shall be forwarded to the House of Elders, which shall:

All bills passed by the House of Elders by a majority shall be forwarded to the House of Representatives, which shall:

If the President accepts a bill passed by both Houses, he shall issue it in the Official Journal within 21 days. If, however, the President does not accept the bill, or proposes amendments, he shall inform the Speaker of the House of Representatives his reasons for such action within 21 days. If the House of Representatives is not satisfied with the reasons given by the President, and the bill is passed again by a 2/3 majority of the members of the House, the President must accept the bill. If a 2/3 majority is not reached, the bill will not pass.

3.7.1. Legislature and Procedure for Legislation

The Somaliland Constitution stipulates the procedure for adopting legislation or bills under article 74, which states that bills (draft legislation) may be introduced at the House of Representatives by the Council of Government (the Cabinet), the requisite number of members of the House of Representatives as laid down in the rules set by the House, or, except for financial bills, at least 5,000 (five thousand) citizens who are eligible to vote.

Article 76 states that a bill shall become law on approval by the House of Representatives, and shall come into force after its signature by the President in accordance with Article 38. The power to legislate cannot be transferred to anyone outside the Parliament. Article 77 provides the Procedures for Legislation as follows:

3.7.2. Special Procedures for Legislation

The procedures for financial and non-financial bills are found under Article 78 of Somaliland constitution, which states:

3.7.3. General Background of Somaliland Constitution in Legislative Environment Over the Last 15 years

Somaliland has a written Constitution, and this has important juridical implications. The Somaliland Constitution divided sovereign powers amongst the three organs of the state as mentioned in the preamble of the Constitution as well as per Article 37(2).

The separation of the powers of these branches shall be as set out in the Constitution, and each branch shall exercise independently the exclusive powers accorded to it under the Constitution.[34] In this regard the Constitution divided these three organs of the state in different parts in Chapter 2. This provided that no organ could therefore act beyond its own powers or usurps those assigned to another under. Where a written Constitution exists, it forms the organic or fundamental law of special sanctity and follows the rule of law, where the validity of the laws enacted by Parliament (both houses) were to be tested in relation to the supreme law of the land and other fundamental laws.

The role of legislative power to make laws is specified under Article 38 which provides that the legislative powers of the Republic of Somaliland are vested exclusively in Parliament which shall consist of two Houses - the House of Representatives and the House of the Elders. The power to legislate cannot be transferred to anyone outside the Parliament. Additionally, both Houses of Parliament have their own Rules of Procedure and a set of Rules which govern joint sittings, which are permitted under the above Article of the Constitution.[35]

Although the Somaliland Constitution was properly adopted, history has shown that for the last 10-15 years, Parliament passed different laws according to the legislative power vested in it, but on the other hand, actual current practice shows that there has been a lack of a meaningful role for the Parliament in the legislative process.Currently, the principal role in the law-making process is played by the Government; the role of the Parliament by contrast is limited.

For that reason, the Government remains very much involved even once draft laws reach the house of Parliament. In this regard Parliament has little power to effectively change governmental legal proposals: the draft laws initiated by the executive may be voted on only with regard to those amendments that the government has agreed to accept. This leads to a situation where, rather than reject a draft law in its entirety, Parliament adopts a draft law in the format approved by the Government without introducing all the changes that Parliament may consider necessary. This gives the Government quite significant leverage in pushing legislation through and weakens the position of the Parliament in the law-making process, thereby significantly reducing its scope for action[36]. Further, the oversight functions of Parliament vis-à-vis the Government, could be made clearer in relevant legislation, including in rules specifying, for example, the budget approval process.

Several challenges have been observed during the legislative environment for the last five years. Therefore, we here focus on different sessions and meetings that have been held in order to exercise the power of Parliament to legislate and passing Acts. Since 2005 – 2010, only 13 ordinary and 9 extraordinary sessions were held. Somaliland Parliament sat on 997 sessions and as regular business held 47 sessions, 158 sessions, 118 sessions and 180 sessions in 2011, 2012, 2013, 2014 respectively.

The different subcommittees held 280 sessions, with the Standing Committee meeting 340 times and holding six (6) joint sitting of both Houses (House of Elders and House of Representatives). These sessions were held to do Parliamentary business in exercising their legislative powers, including but not limited to, making laws, amending others and to approve appointed members of the executive organ (Ministers, Vice Ministers, Chairman of Commissions) as well as two joint sessions for the dismissal and approval of the Chief Justice of the Supreme Court.

Hence, as with the legislative powers, and following the principle of the separation of powers, to enable checks and balance, judicial independence is set out in Chapter four of the Somaliland Constitution. In one part, comprising ten Articles (from Article 97 to 106) it also set out the nature of the judicial branch and specified the exclusive power as well as the structure of the judiciary wherein it states that The State shall have a judicial branch whose function is to adjudicate on proceedings between the Government and the public, as well as between the various members of the public. In this regard as a written Constitution, it states that The Judicial Branch shall fulfil it duties in accordance with the Constitution, and it shall be independent of the other branches of the state. Therefore, the Constitution recognized in different Articles that the application of the principle of separation of powers is an essential element for achieving judicial independence.

Additionally, it is very interesting to note that the procuracy was part of the judicial branch and a member of the procuracy may be removed from office by the President alone, with no requirement for the approval of both Houses of Parliament. This is in contrast to the power of removal of the Chairman of the Supreme Court, which requires the approval of both the House of Representatives and the House of Elders. Furthermore, the Constitution provides in (Art 122) that each special organ of state shall have a law setting out its structure, responsibilities and the status of its Chairperson. This is the roadmap for passing the Organization of the Judiciary Act and is a paramount and important concern.

Finally, the Parliament failed to enact several laws which are substantial and significant for the establishment of some institutions/organizations such as the Security Act, All Media Concern Act, and the Anti-Terrorism Draft Law,which has currently not been passed by Parliament. There are other draft laws that are essential but not discussed yet within the parliament such as Cyber Crime Law, the Penal Code, and Somaliland Legal Aid Act. This failure is contrary to what the Constitution mandated as a legislative power of Parliament under Article 38(4) (c), namely the implementation of the laws of the Republic and the genuine achievement of justice which is the foundation of the Republic’s general stability and the confidence that the members of the Somaliland public have in each other and their reliance on each other. Failure to enact such laws creates conflict of roles and mandates among justice sector actors including the negative effect of working in an environment that is not in compliance with the Rule of Law.

3.8. Law Reform Commission

The government of Somaliland established a national commission (LRC) responsible for reforms drafts and suggests amendments for some of the Somaliland laws that may have been old or obsolete. The reforming process will be a critical review that eventually serves for best interest of Somaliland people through upgraded service delivery on law reform that subsidizes to the realization of a society that has democratic values, social justice and fundamental rights for all citizens. The LRC reviewing and reforming activities are involving in identifying and weeding out the laws or statutory provisions that became old-fashioned or redundant and being no longer in use.

Throughout this process, the Law Reform Commission is strengthening itself to create a strong public relationship through consultation and interaction with law reform bodies and institutions of the other countries, legal professional organizations and civil society entities. However, the Somaliland Parliament enacted many national acts to toughen the legal infrastructure of the country in order to ensure the national identity and the determination of Somaliland as an independent state, but no reforms of the penal code were involved. This is the reason why the Somaliland courts maintained the application of the Somali civil and criminal codes those are believed to be outdated.

Being a part of Somaliland statehood and reinforcing its national identity, the Law Reform Commission (LRC) is dedicated to monitor the social and economic changes within the political context. In general, some provisions of the penal code are contrary to the individual fundamental rights and freedoms guaranteed by the Constitution while some others are in contradiction with each other and not in line with Islamic sharia. As such, LRC continues this reform process because a comprehensive reform is needed, including substance, linguistic, as well as the structure.

Furthermore, another important part of the legal basis for the commission are referred to the following historical background of Somaliland Law Reform Commission (LRC), which was established in 2008 by Presidential Decree Lr.0384/072009. On 14 December 2017, the LRC was placed under the Ministry of Justice as line Ministry, again, the President of Somaliland amended Presidential regulation No. 01/2018 on the Organization of Government Ministries and Agencies by Presidential Decree No. JSL/XM/XM/249-316/052019, dated on May 27, 2019. The President changed the line Ministry of the LRC under the Ministry of Parliamentary Relations and constitutional Affairs as of May 27, 2019. The regulation of the President has made the status of the LRC to work as an independent entity for its affairs, while the Ministry will oversee the LRC for supervision.

3.9. Ministry of Parliamentary Relations and Constitutional Affairs

The Somaliland government introduced the Ministry of Constitutional Affairs in 2018; prior to that, the Ministry of Parliamentary Relations and Constitutional Affairs had been established in 1995 by Presidential Decree No.59/95, Ref: JSL/M/XERM/249/59/1995, dated 8 November 1995. The Ministry has been operating a period of 22 years from the date of its establishment to the present. Throughout the era, the Ministry has had ten Ministers including the incumbent Minister.

The original title and the mandate of the Ministry has been changed two times. The original title and role of the Ministry was related to the executive branch and the Parliament of Somaliland in 1995. In 2010, during the time that the 4th President of Somaliland was reducing the number of Somaliland Government Ministries, role of the Ministry was added Political Affairs and new title of the Ministry became “Ministry of Executive’s Relations to the Parliament and Political Affairs” the Ministry was not autonomous anymore and the Ministry and its staff was placed under the Ministry of Presidency.

The Ministry was reappointed in 2013, with new title of “Ministry of Executive’s Relations to the Parliament, Technology and Science.” The 5th President of Somaliland, Hon. Muuse Biixi Cabdi rearranged the role of the Ministry on 14 December 2017. In accordance of Article 126 of presidential act No.01 2018-1,[37] the new title of the Ministry is now “The Ministry of Parliamentary Co-ordination and Constitutional Affairs.” The role of Technology and Science was given to the Ministry of Education.

Additionally, in 2019 the President of Somaliland amended Presidential regulation No. 01/2018 on the Organization of Government Ministries and Agencies by Presidential Decree No. JSL/XM/XM/249-316/052019, dated on 27 May, 2019, the President changed its line Ministry of the LRC and rearranged under the Ministry of Parliamentary Relations and constitutional Affairs as of May 27, 2019. The regulation of the President has made the status of the LRC to work as an independent entity for its affairs, while the Ministry will oversee the LRC for supervision.

3.10. Somaliland Solicitor General

The Office of the Solicitor-General is established under section/Article 48 of the Somaliland Judiciary Organization law. Lr: 24/2003. The Somaliland President H.E Ahmed Mohamed (Silanyo) implemented the establishment of the Office of the Solicitor General for the first time in Somaliland history. The president proclaimed the establishment of the office in 30th/June/2011. The main purposes were:

4. The Judicial Structure

Somaliland had its own judicial system headed by the High Court in Hargeisa until 1960. In 1960, the Somaliland Constitution re-confirmed the existing judicial system, but suspended the appeals to the East African Appeal Court. On the reassertion of its independence in 1991, Somaliland rebuilt its judicial system fairly quickly, with the Somaliland 1993 Charter (Article 21) setting up the Somaliland Supreme Court as the highest court of the land. The court structure which had existed prior to the military rule of 1969, which was based on the Organisation of the Judiciary Law 1962 (Legislative Decree No. 3 of June 12, 1962) was re-established and confirmed by the Somaliland Organisation of the Judiciary Law 1993 (Law No. 41 of August 18, 1993). The court structure was re-confirmed in the 1997 Interim Constitution and is now set out in Chapter Four of the current Somaliland Constitution. A description of the structure of the current Somaliland courts of law is set out below.

The new Somaliland Organisation of the Judiciary Law (Law No. 24, 2003), which proposed to consolidate the existing provisions, was initially approved by both Houses (on Dec. 21, 2003 by the House of Representatives and on Feb. 15, 2004 by the House of Elders), but was returned by the President to the Houses to re-consider the then Article 10(2) of the Bill, which related to the appointment of Supreme Court judges. The President said that the Article did not conform to the Constitution; the Article stated that the President shall consult the Supreme Court Chairman about such appointments, while the Constitution says that he shall consult the Judicial Commission, which is incidentally chaired by the Supreme Court Chairman. When the House of Elders passed this bill in 2004, they also amended Article 21, proposing to raise the minimum age of judges to 35. The bill was adopted on July 13, 2000.

Moreover, additional amendments have been included, such as as a new amendments of the law of judiciary organization, which was initiated by the legislative members of both houses to harmonize and codify as a single law of judiciary organization that has been approved by both houses of the parliament and currently is awaiting or pending for the signature of the President. As it is mainly a consolidation law, since almost all of its provisions are already in force.

The current Somaliland constitution under article 99(1) provides that the Judiciary consists of the courts and the Procuracy. Additionally, (103) stipulated that the Procuracy of the state shall consist of the Attorney General and his deputies.

4.1. Attorney General

Accordingly, the structure of the office of the Attorney General of the State is given by Presidential Decree No. 2 of 16 August 1997 - Xeer Madaxweyne Lr. 2 ee 16 Ogosto 1997. This Decree has been amended by the Articles 44-46 of the Organisation of the Judiciary Law No. 24/2003.[38]

Further, article 106 of the Constitution guarantees independence of the Judiciary from the Ministry of Justice, though, as pointed out by the chairman of Supreme Court, the budget of the courts is still controlled by the Ministry of Finance. Another interesting fact is that the Ministry of Finance in the preparation of national annual budget divided the court structure where the Supreme Court can prepare their own budget but not for the whole judiciary. This means the budget of the lower courts is still controlled by the Ministry of Finance.[39]

4.2. The Hierarchy and Structure of the Courts

There are two principal sources which empower the Courts of Somaliland and delineate the judicial structure, which are:

As provided on August 14, 2006 by the then Acting Chief Justice, Somaliland has now 33 functioning courts of law, staffed by 87 judges.

4.3. The Jurisdiction of District Courts

The district courts deal with all claims based on Sharia, which are primarily matters relating to family law and succession. They also deal with civil litigation concerning suits for amounts up to 3 million SL (around 484USD at a rate of exchange of 1USD = 6200 SL), and criminal cases punishable by imprisonment for up to 3 years or fines up to 3 million SL. This court is presided over by a District Judge.

4.4. The Jurisdiction of Regional Courts

All civil litigation and all criminal cases which do not fall within the jurisdiction of the District Court are under the jurisdiction of the regional courts. The General Section of the Courtdeals with crimes punishable by imprisonment for periods between 3 and 10 years which are heard by a Regional Judge.The Assize Sectiondeals with cases attracting a higher prison sentence, which are heard by a Regional Judge and an assessor who has knowledge of the Sharia. According to Articles 7 and 38 of the Organisation of the Judiciary Law, and the panel of assessors is compiled every year by the Ministry of Justice. This court also deals with all claims pertaining to labor or employment law, and any claims arising out of local government elections.

The Court is divided into four branches: civil, criminal, finance and taxation, and juvenile. The President of the Regional Court hears juvenile cases, which come under the jurisdiction of the Regional Court.

4.5. Appeals Courts

The Appeals Courts deal with all appeals from the District and Regional Courts. Each Appeals Court is divided into:

The President of the Appeals Court in each region acts as the head of the judiciary in that region.

4.6. The Supreme Court (and the Constitutional Court)

The Supreme Court is the highest judicial organ in the country and comprises the chairman and at least four judges. The Supreme Court deals with:

The justices of the Supreme Court can also sit as the High Court of Justice,with an additional four representatives elected by the two Houses of Parliament. This special court deals with the impeachment of ministers, members of parliament, and other specified public officers; since 2000, this court does not deal with the impeachment of the President or the Vice-President.

Article 2 of the Organisation of the Judiciary Law, (Law No. 24, 2003) re-confirms the independence of the judiciary, which is set out in the Constitution (see Articles 97(2) and 99(2)). The Law also makes it clear that special courts outside the courts of law which are set out by the Constitution cannot be established in Somaliland, and no committees with judicial powers or which act in a quasi-judicial capacity and issue criminal punishment can exist in the country (Article 2(3) & 2(4)). Individuals can, however, by agreement of both parties to a dispute, use alternative dispute resolution mechanisms through appointed mediation panels (Article 2(5)). This simply confirms the traditional methods of settling disputes.

Judgesother than Supreme Court justices are appointed by the Judicial Commission, which was set up under Articles 107 and 108 of the Somaliland Constitution. Judges hold office until their retirement, which is typically at 65 years of age. The Commission is chaired by the Chairman of the Supreme Court and consists of two other Supreme Court Justices, the Attorney General, two high ranking civil servants (Heads of the Ministry of Justice and the Civil Service Agency) and four members of the public selected once every two years by the two House of Parliament. The Commission also deals with the promotion and, when necessary, the disciplining of judges, the procedures of which are set out in detail in Articles 40-46 of the Organisation of the Judiciary Law.

4.6.1. The Appointment of the Chief Justice

The Chief Justice is appointed by the President, in consultation with the Judicial Commission, according to Article 105 of the Constitution; in respect for the Chairman of the Commission, the appointment must be confirmed at a joint sitting of both Houses of Parliament. The President, under Article 105(2), may dismiss the Chairman of the Supreme Court subject to the approval of both Houses.

4.6.2. High Judicial Commission

The High Judicial Commission, also referred to as the High Judicial Council, is often incorrectly referred to as "HJC." Under Art. 107 and 108 of the Constitution, the Judicial Commission is given the power to deal with of the appointments, promotion and transfer of judges in the courts other than the Supreme Courts and of Deputy (or assistants) of the Attorney General. The composition of the Commission is set out in Art. 107(1) of the Constitution as follows:

Two members are selected from the public once every two years by the House of Representatives, one of whom to be chosen from among the intellectuals and the other from the businessmen. Two members are selected from the public once every two years by the House of Elders, one of whom to be chosen from among those who are well versed in the traditions and the other from the religious scholars.

The Commission is often incorrectly referred to as the ‘Higher Judicial Council’ which was a similar body set up under the 1962 Organisation of the Judiciary Law. The 1962 Law was largely repealed by the 1974 Organisation of the Judiciary Law. The Council was, however, revived after Somaliland’s re-assertion of its independence and reversion to the 1962 Law with the composition of the then Somaliland Higher Judicial Council being set out in the 1996 Structure of the Judicial Council Law - Law No. 92/96 (Sharciga Dhismaha Gudiga Cadaalada- Lam. 92/96). Furthermore, the newly amended law of judiciary organization has also provided overall structure of the judiciary and particularly hierarchy and roles and responsibilities for each body of the judiciary, such as courts, attorney general office, judges, prosecutors and more content. To this end Somaliland currently introduced new amendments of that law, which is awaiting the signature of the president for promulgation.

4.6.3. Juvenile Justice Administration

The administration of juvenile justice is of practical relevance to Somaliland legal systems. It reflects the interests of society to promote the rule of law and aims to reintegrate the child accused of infringing the law. As such in 2007 a law on juvenile justice was approved in Somaliland by the parliament and signed with a Presidential Decree (No. 339/2008) issued on 21 April 2008 brought this Law in to force on that date. But, it has not yet been implemented due to economic constraints and lack of knowledge concerning legal matters on behalf of leaders of institutions and their staff. The law provides penal prosecution from the age of 15 and requires that the measures are proportionate to the circumstances of the child and the severity of the offense. It limits the maximum sentence to 15 years and prohibits corporal penalties, imprisonment and death penalty. However, article 34.1 stated that the placement of children in facilities of different categories or with different regimes shall be determined by a competent Court. Again, the court while deciding on the placement of the child shall take the following factors into account:

Unlike various other countries where the age of lack criminal responsibility (doli incapax) has been reduced over the years, Article 10 of this Law raises the age of criminal responsibility from 14, which it was under Article 59 of the Somali Penal Code, to 15. However, as in the Penal Code, minors aged 15 to 18 shall be liable for any criminal acts committed if they have the capacity of “understanding and volition”. These changes are, however, more in line with the views of the UN Committee on the Rights of the Child (CRC/C/GC/10: General Comment No: 10 (April 25, 2007), paragraph 30-39) in the Somaliland Juvenile Justice Law (Law No. 36/2007).

5. Professional Standards

The Somaliland legal profession is influenced by the structures set up during the union with Somalia (and especially from the mid-1970s) and continues to consist of two separate branches - Advocates and Notaries. As Somaliland regains its legal links with common law countries, especially in East and Southern Africa, the extent of this total separation between the two professions of Advocates and Notaries is to be revised.

5.1. Somaliland Advocate and Public Notaries

Prior to 1975, the Somaliland legal profession was governed by the Legal Practitioners’ Rules Ordinance No. 44 of 1957 (and that of Somalia was covered by Law No. 21 of 27 June 1958). Later when Somaliland proclaimed independence from Somalia, it enacted one single set of laws for the advocates and notaries and other legal professions. Laws concerning Advocates and Notaries have been revised and separated into two laws: Somaliland Notaries Law -Law No 18/2001 and Advocate Law no 30/2004/as amended in 2013. The Somaliland Advocates Law (Law No 30/2004 as amended in 2013), which came into force in 2004, has been amended recently and the amended version has now come into force on the date of its signature by President on September 28, 2013. The Somaliland Notaries Law - Law No: 18 of 2001 governs the work of Notaries. Notaries draw up all legal documents including contracts for sale, and various court documents. A Notary must hold either a law degree or have 5 years legal experience and must be aged 30 years or more.[40]

5.2. Somaliland Lawyers Association

Somaliland is yet to establish a Somaliland Bar Association; however, there are two recognized lawyers’ associations: Somaliland Lawyers Association (SOLLA) and Somaliland Women Lawyer’s Association (SWLA). SOLLA is non-political, non-profit making human right and legal professional association, which unite 90% of the Somaliland lawyers including law professors of Hargeisa University faculty of law, other law colleges, legal advisors of the both legislative Houses, Government ministries, local Governments, national commercial companies and legal consultancies of the UN and International Humanitarian agencies around Somaliland six regions and founded Jun 2004.

SOLLA is mandated to enhance the reputation of Somaliland lawyers, improve the quality of their performance in service delivery, protect lawyers’ rights, and regulate observance of their duties, including the realization of access to justice, fair and independent judiciary, respect of human rights, promotion of the legal education, realization of democratic and proper application of the laws. Firstly the promotion of the respect for human rights is one of the indispensable purposes of the Bar (SOLLA). Secondly the system of periodic reporting within the context of the major international human rights instruments is the Associational vital element in monitoring the full and effective national implementation of international human rights standards.

SOLLA works with the local societal groups and the government to carry out the responsibilities and strategies towards civil protection on the observance of the human rights and fundamental freedoms of the community, fulfilment of democratic and sustain of peace in Somaliland. In addition, SOLLA engages a process to review the country’s existing laws and advise a process of the new legislation concerns the civil liberties and fundamental freedoms of the community, upgrading democratic system, access justice and fair and independent judiciary system of Somaliland.

As an independent expert on human rights, SOLLA has established human right monitoring system to eliminate abuses, violations or neglect, exploitation, discrimination, or exclusion from the development process and to provide free legal aid supporting for human right victims. It had a specific committee of experts nominated and elected within the association’s board.

Hence the intermediate objectives is to adopt appropriate human rights and legal education strategy that could transfer human rights, democratic and responsibilities to the people we serve to enable them all realize, understand or claim and best defend and practice their rights. On the other hand, SOLLA carry out legal researches for promoting the understanding and legal knowledge of the country thought legal studies, analysis of the laws of the country for their adoption, reforms and application and interpretation of the laws, to improve the legal system of the country.

5.3. Somaliland Women Lawyers Association

The Somaliland Women Lawyers Association (SWLA) is a non-profit non-governmental organization. The founding members recognized the great need for creating a forum for women lawyers to offer each other mutual support and harness their professional skills into a force for educating society and particularly women in Somaliland society about their legal rights. SWLA does this by advocating for legal and policy changes through enactment of laws and providing legal aid to women and children. The aims of SWLA include:

Due to the absence of implementation and enforcement of a regulatory framework for lawyers in Somaliland, there is no over-arching governing statute for the legal profession or national code of conduct that all lawyers could and should follow. In practice, Somaliland lawyers can voluntarily join either SOLLA or SWLA and so, voluntarily assume their internal codes of conducts. But there is no general disciplinary mechanism overseeing their conduct. A bar association can be a useful tool to ensure that all practicing lawyers are observing the same professional standards in upholding the law.

5.4. Legal Education

Formal legal education in Somaliland had to wait until the establishment of a faculty of law in 2002. Challenges to the initiation of legal education in the country included concerns as to who should be taught law, at what level should law be taught, who should teach law and what laws should be taught.

The previous curriculum at the faculty have been reviewed two times. During the first review the first step was to identify the attributes and the generic and discipline-specific skills required by and of our law graduates. This was done by utilizing a variety of sources, including feedback from employers and graduates, studies conducted by professional bodies, the university’s own generic list of graduate attributes, and various international studies. Many of these sources have been referred to above; the faculty has taken experience from the law schools in this region and from the global to name these backbone institutions were included but not limited to Pretoria University, KWAZULU Natal University, Khartoum University, Mekelle and Addisababa University’s Schools of Law and University of Cape Town.

Additionally, to promote and scale up the best experience of legal research through institutional inter-arrangements, the College has expand its wings to collaborate with other similar institutions, such as the agreements between Mekelle and Enskilda Högskolan Stockholm (EHS formerly Teologiska högskolan Stockholm)[41] and University of Hargeisa (UH) institutions for the action of Mobility for learners and staff –Higher Education Student and Staff Mobility.[42]

Now the College of Law and its Legal Clinic are currently involving in the following goals where the law and justice are the most advancing and dynamic field of Arts:

The College in collaboration with Ministry of Justice, judiciary organ and other law enforcement institutions, UNDP, other UN and the LLM program will establish postgraduate of vocational Legal professional training.

Finally to start of Master's program (LLM) was an excellent opportunity to address the shortage of skilled professionals in the areas of Legislative drafting, taxation and Investment Law, including but not limited to Criminal Law and Criminal justice. For that reasons and based on previous relations of University of Hargeisa (UoH)[43] and Mekelle University (MU)[44], MOU have been signed by University of Hargeisa College of Law and Governance and MU School of Law. and then was translated into practical and Memorandum of Action, this action agreement was based on this previous MOU and to enable to commence and continually implement the collaborative capacity building LL.M programs in areas particularly stated the agreement between the two respective colleges.

6. Somaliland Legal Research

Neither post-colonial nor post-military regime Somalia has had any comprehensive legal research libraries, privately sponsored websites, governmental websites, bar associations, legal information guides, Supreme Court libraries, or law databases. But in the recent establishment of Somaliland there are few legal websites which published the new laws and legal research information, including Somalilandlaw.com and the http://www.somalilandparliament.net/Test/. At the same time, there is no compiled 100% complete library of every applicable piece of legislation which is currently in effect in Somaliland, including court decisions, executive (Presidential and Ministerial) decrees, and municipal ordinances every day.

6.1. Primary Legal Materials

Somaliland, despite being an unrecognized state, has a complex system of laws which regulate all aspects of citizen life. The laws of Somaliland are mainly derived from the laws which Somaliland had followed during the union with Somalia. Although Somaliland has drafted and adopted a Constitution which invalidates all pre-Somaliland laws that are not in conformity with the current constitution, some of these laws are still enforced by Somaliland courts. There are numerous statutes, regulatory codes and other laws which the Somaliland parliament has passed, all of which are consistent with the constitution.

6.2. Case Laws

The Somaliland legal system is organized according to civil law rather than common law. Consequently, case laws are neither published nor significant to future legal decisions.

6.3. Law Reports

In Somaliland, there are no law reports issued which document the annual reports of the courts, or the judgments and decisions of the courts. But the faculty of law at the University of Hargeisa publishes academic legal analysis document which is aims to analyze the delivered judgements and comment by the Legal clinic documentation Lawyers, this lawyers are senior jurists/judges who already served as Supreme Court judges in number of years and retired from the judiciary. Additionally, Somaliland judiciary initiated in 2018 to set up in the first instant courts electronic case managements but up to now there is no law reports have been publically published by Somaliland judiciary.

Other related law reports such as the human rights law are also available and published by the independent human rights centres, such as the Centre for Human Rights and Hargeisa Legal Clinic.

6.4. Legal Journals/Law Journal

Legal journals are not yet being published in Somaliland. The faculty of law at the University of Hargeisa has recently published a legal magazine which is aimed at analyzing and discussing the laws of Somaliland. However, this magazine is more like a student law review than a legal journal. Moreover, as of 2019, the university of Hargeisa, College of Law has started to set up Law Journal under the auspices of a joint LLM program between Mekelle School of Law and College of Law of Hargeisa University.

6.5. Official Government Gazette

The Somaliland government set up an official government Gazette three years after the restoration of Somaliland independence. The primary purpose of this gazette is to publish all laws which the president signs and promulgates. It is published on monthly basis and is crucial for the dispensation of the promulgated laws in Somaliland. For that reason, currently all Somaliland laws are issued through the official Gazette published by the Somaliland Silicitor General. Article 75 of the Constitution states that “all laws shall be promulgated and published in the Official Journal by the President within three weeks (21 days) beginning from the date when the two Houses have forwarded them, and shallcome into force within thirty (30) days beginning from the date of their publication, but a longer orshorter period for coming into force may be set out in each law.”

7. The Legal Clinic

The Legal Clinic was attached to the Faculty of Law at the University of Hargeisa. This legal clinic has been contributing to the improvement of the legal education of law students by providing them with an opportunity to apply and expand their theoretical understanding of the law in a client service context. This legal clinic is the first legal aid clinic in Somaliland and is also the leading institution of the legal empowerment agenda. The institutional goal of the Legal Clinic of Hargeisa University is to provide free pro-poor legal services for vulnerable groups and deliver quality clinical legal education strengthened.

Moreover, legal assistance and representation is provided for vulnerable groups with a particular focus on the needs of children, women and IDPs, and individuals on remand and in pre-trial detention. The goal of the Legal Aid Component is to offer free, sustainable, and pro-poor legal services for these groups in criminal & civil matters. Clinic Legal Education Component is to deliver quality clinical legal education in order to provide students with an opportunity to learn the practical, substantive and ethical considerations to practicing law.

Moreover, Access to Justice and Legal Awareness Component is raising awareness among key criminal justice stakeholders and civil society as well as public living in remote districts and villages, providing access to justice, offering mobile court services and Legal Clinic’s services, which are all prerequisite to the development and maintenance of a just and fair criminal justice system with a particular focus on marginalized individuals in the community.

Further, it is important to run and keep up to date the Legal Clinic Documentation Centre in order to collect information on cases dealt with by the Clinic and analyzing and collecting data on human rights trends. And lastly, undertaking a study on Land ownership law and practice in Somaliland, presenting on the meaning of “arrest for rehabilitation” as provided in the new Somaliland Public Order, are all among some of the priority goals.

7.1. Legal Clinic Structure

The Legal Clinic composes the following five practice units, headed by clinical instructors:

8. Online Resources

SomalilandLaw.com is the largest legal resource that one can find on Somaliland laws. It contains all bills and enacted laws found at the http://www.somalilandparliament.net/Test/, Somaliland Forum is an online resource for individuals of the Somaliland Diaspora, primarily living in North America and Western Europe. The official Gazette and all the back copies are now also available at the website of the Somaliland Chief State Counsel (or Solicitor General). Further information can be found in the website of the Ministry of International Cooperation and Foreign Affairs.

[1] Somaliland comprises the territory, boundaries and the people of the former British Somaliland Protectorate, defined by the following international instruments:

[2] Somaliland Constitution, Articles 80 and 81.

[3] Report on International election observers/ Somaliland presidential election, Report on the Somaliland Presidential Election, 13th November 2017 by Michael Walls, Conrad Heine, Andrea Klingel, Carrie Goggin, Ahmed Farag, Susan Mwape with input from Rooble Mohamed and Short-Term Observers.

[4] Refer updated reports from the Somaliland Chamber of Commerce.

[5] See DP Word Berbera.

[6] Somali Civil Code, Art 53(1,2,3), Proc. No 23/ Year 1973.

[7] Garyaqaanka guud Somaliland company law,2018, Art.--------Proc No SL/XM/WM/222-188/082018, NegGaz Year 19, No7.

[8] Somaliland Company law,2018, Art. 1 Proc No SL/XM/WM/222-188/082018, NegGaz Year 19, No7

[9] See article 99 of the Company Act 2018.

[10] Andrew Harrison, International Country Analysis: A Lecture Programme delivered at the Technical University of Košice Andrew Harrison, Formerly of Teesside University, United Kingdom, published in December 2011.

[11] Shenoy, George Thomas Luis. Choice of Business Forms for International Entrepreneurship through Direct Foreign Investment. (1999). Proceedings of the 9th Endec World Conference. Research Collection School of Law.

[12] Woodman (1999) “The idea of legal pluralism” in: Baudouim Dupret, Maurits Berger & Laila al-Zwaini(eds.), Legal Pluralism in the Arab World, the Hague: Kluwer Law International, 3-19.

[13] Chair, Centre for Comparative law in Africa, University of Cape Town: Honorary Professor for African Law, Centre for African Laws and Society, Xiangtan University.

[14] Journal of African Law, 58,1(2014),1-21SOAS, University of London,2014, 1st published online 4 February 2014.

[15] Legal system serious, the legal system of the Somali Democratic Republic by Haji N. A. Noor Muhammed, law publisher, 1972.

[16] The World Bank & International Financial Corporation. Doing Business in Hargeisa2012 at p. 31-35.

[17] Somaliland Constitution.

[18] Land Law and Islam: Property and Human Rights in the Muslim World was first published in 2006 by Zed Books Ltd. 7 Cynthia Street, London N1 9JF, UK and Room 400, 175 Fifth Avenue, New York, NY 10010, USA.

[19] Somaliland Constitution Article5.

[20] Land legal framework situational analysis Report of 2006 by UN-Habitat.

[21] Statement of Interview with the Director General of Ministry of interior Mr.A.samad O.Maal, this procedural regulation was aimed to implement the law No.1 and shall as procedural guideline upon the approval of the ministry of interior who is mandate by law the issue regulation for implementation of Law No.17/2001.

[22] For further reading on see Somalilandlaw.com.

[23] Somaliland Gazette, Faafinta Rasmiga Ah Official Gazzette, Xeer-nidaamiyaha Dhismaha Wasaaradaha iyo Hay’adaha Xukuumadda Xeer Nidaamiye, Lr. 01/2018.

[24] This comment by Ibrahim Hashi can be found in www.Somalilandlaw.com as follows; Somaliland is clearly indicating its acceptance of “universal treaties” and of international human rights conventions, but succession to bilateral treaties and agreements have to be based on the complicated norms of international law and the terms of any agreements Somaliland may reach with Somalia similar to those entered into by the Eastern European states which emerged out of the dissolution of unions.

[25] See also Article 22(2) below for the application of international conventions and human rights norms to the fundamental rights and freedoms set out in Chapter One, Part Three of the Constitution.

[26] Ahmed Sheikh Ali Buraale, 2008, The Somali Customary Laws, published by Somali Community Literacy Center, Addisababa, Ethiopia.

[27] Ibid.

[28] See this Somaliland Piracy Law.

[29] For more information, see EuCAP Somalia.

[30] Somaliland Office of the Solicitor General, http://garyaqaankaguud.com/.

[31] Somaliland Coastguard Law No 85/2018

[32] This is the act that the commission was established as an independent commission.

[33] Ibrahim Haji Jama.

[34] Somaliland Constitution, Article 37(2).

[35] See Somaliland Constitution Article 38, also refer to www.Somalilandlaw.com According to Rule 2(e) of the Annexe (Rules of Parliament), the proposal for such meetings and the agenda shall be put forward by either:

a) the two Speakers and shall be approved by the two Houses, or

b) on the motion of a majority of the total members of one House which shall be forwarded to the other House, which may approve or reject the motion by a majority of its total members.

The joint meetings shall be chaired by the Speaker of the House of Elders, and the Speaker of the House of Representatives shall act as a joint chairman (Rule 5). Unless otherwise stated in the Constitution. Resolutions in joint meetings of the two House shall be carried on a simple majority (Rule 3).

[69] Rule 2 of the Annexe (Rules of Parliament) adds that the two Houses may hold joint meetings about:

a) Political issues that face the nation,

b) on request of the Government or when two Houses want to put questions to the Government or are seeking situation reports or evidence from the Government,

c) when there is a need to settle some issues relating to any side (presumably the Houses or the Government), be it discussion of opinions or passing of laws etc.

d) When there are proposals from the Government or one of the Houses to amend the Constitution, in which case, the two Houses may empanel joint committees.

[36] For example, Somaliland Law No. 56/2013 of roads and traffics law, piracy law Law No 52, and Law No. 51 of Public order law and other many laws is only interested by the executive, where the parliament has limited role in the first stages of these laws.

[37] Somaliland Gazette, Faafinta Rasmiga Ah Official Gazzette, Xeer-nidaamiyaha Dhismaha Wasaaradaha iyo Hay’adaha Xukuumadda Xeer Nidaamiye, Lr. 01/2018.

[38] See Somalilandlaw.com.

[39] See the Somaliland Budget 2012, and 2013, as well as 2014.

[40] Further details are available at Somalilandlaw.com – Somaliland Legal Profession.

[41] See Enskilda Hogskolan Stockholm.

[42] See the Erasmus Program.

[43] University of Hargeisa.

[44] Mekelle University.