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Somalia-Penal System

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Somalia Index

The Somali Penal Code, promulgated in early 1962, became effective on April 3, 1964. It was Somalia's first codification of laws designed to protect the individual and to ensure the equitable administration of justice. The basis of the code was the constitutional premise that the law has supremacy over the state and its citizens. The code placed responsibility for determining offenses and punishments on the written law and the judicial system and excluded many penal sanctions formerly observed in unwritten customary law. The authorities who drafted the code, however, did not disregard the people's past reliance on traditional rules and sanctions. The code contained some of the authority expressed by customary law and by Islamic, sharia, or religious law.

The penal laws applied to all nationals, foreigners, and stateless persons living in Somalia. Courts ruled out ignorance of the law as a justification for breaking the law or an excuse for committing an offense, but considered extenuations and mitigating factors in individual cases. The penal laws prohibited collective punishment, which was contrary to the traditional sanctions of diya-paying groups. The penal laws stipulated that if the offense constituted a violation of the code, the perpetrator had committed an unlawful act against the state and was subject to its sanctions. Judicial action under the code, however, did not rule out the possibility of additional redress in the form of diya through civil action in the courts. Siad Barre's regime attacked this tolerance of diya, and forbade its practice entirely in 1974.

Under the Somali penal code, to be criminally liable a person must have committed an act or have been guilty of an omission that caused harm or danger to the person or property of another or to the state. Further, the offense must have been committed willfully or as the result of negligence, imprudence, or illegal behavior. Under Somali penal law, the courts assumed the accused to be innocent until proved guilty beyond reasonable doubt. In criminal prosecution, the burden of proof rested with the state.

Penal laws classed offenses as either crimes or contraventions, the latter being legal violations without criminal intent. Death by shooting was the only sentence for serious offenses such as crimes against the state and murder. The penal law usually prescribed maximum and minimum punishments but left the actual sentence to the judge's discretion.

The penal laws comprised three categories. The first dealt with general principles of jurisprudence; the second defined criminal offenses and prescribed specified punishments; the third contained sixty-one articles that regulated contraventions of public order, safety, morality, and health. Penal laws took into consideration the role of punishment in restoring the offender to a useful place in society.

The Criminal Procedure Code governed matters associated with arrest and trial. The code, which conformed to British common law, prescribed the kinds and jurisdictions of criminal courts, identified the functions and responsibilities of judicial officials, outlined the rules of evidence, and regulated the conduct of trials. Normally, a person could be arrested only if caught in the act of committing an offense or upon issuance of a warrant by the proper judicial authority. The code recognized the writ of habeas corpus. Those arrested had the right to appear before a judge within twenty-four hours.

As government opposition proliferated in the late 1970s and early 1980s, the Siad Barre regime increasingly subverted or ignored Somalia's legal system. By the late 1980s, Somalia had become a police state, with citizens often falling afoul of the authorities for solely political reasons. Pressure by international human rights organizations such as Amnesty International and Africa Watch failed to slow Somalia's descent into lawlessness. After Siad Barre fell from power in January 1991, the new authorities promised to restore equity to the country's legal system. Given the many political, economic, and social problems confronting post-Siad Barre Somalia, however, it appeared unlikely that this goal would be achieved soon.

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