Tuesday August 6, 2019
“Nobody has provided of what irremissibly need was there to change the name of this body. The least one could say is that it is just a case of copycat version of some Common Law countries” This paper overviews the functions, attributions and composition of this important Organ for the independence of the Judiciary.
The legal system of a country consists of the body of law applicable as well as the institutions that emanates the law. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. The common law system can be traced back to the English monarchy and it is today the model followed in many English speaking countries. Civil law, on the other hand, is generally traced back to the code of laws compiled by the Roman Emperor Justinian around 600 C.E. then developed over many centuries in various countries, leading to similar legal systems. Civil Law system is practiced, for instance, by countries such as Egypt, France, Germany and Italy. For evident historical reasons, the Somali legal system falls under the second category.
The bulk of the legislation in force in Somalia derives its origin from the merger of the two different laws in force in the north and in the south of the country before the unification in 1960. In fact, shortly after independence, the Somali government decided, as a matter of policy, that the continuation of two separate judicial systems would not be consistent with a unitary state. The integration of the judiciary was accomplished by a law entitled “Organization of the Judiciary“, adopted by the National Assembly in June 1962. (Decreto legislative 12 Giugno 1962, n. 3 (Bollettino Ufficiale n. 6 al n. 5. del 31 Giugno 1962). This law contains detailed provisions on how the Jurisdictional Bodies operate, starting from the subordinate Courts to the Supreme Court, the highest judicial organ of the State. (Article 94 of the 1960 Constitution).
The Higher Judiciary Council is an organ referred to in article 96 (5) of the 1960 Constitution and article 27 of the Organization of the Judiciary 1962, and has within its competence and duties to ensure the independence of the Judiciary and its auxiliary personnel.
On June 30, 2014, the Federal Parliament has approved by slim majority of 79 against 59 and the abstention of 9, a new law entitled “Sharciga Dhisidda Golaha Adeegga Garsoorka”. We have no idea as to whether this law has been inserted in the official Gazette of the State to have legal force and effect. In any case, article 31 of this new Law reads as follow: “Waxaa la buriyey sharci kasto aan la socon karin sharcigaan iyo Xeerka Nidaamka Garsooka hadda lagu dhaqmo n. 3 ee soo baxay 12.6.1962” A roughly translation of which is: “Any norm contrary to or incompatible with the provisions of this law, and the Law n. 3 of 12.6.1962 on the Organization of the Judiciary are hereby repealed”. The legislative intent or the purpose that inspired this Law is clear by the words used in the text approved by the Parliament on June 30, 2014. The purpose of the legislator was obviously to replace the “Higher Judiciary Council” provided for in the Law on Organization of the Judiciary of 1962 with a similar Council to which a bizarre name was given: “Guddiga Adeegga Garsoorka” In all Civil Law countries, like Somalia, this Council is known as “Higher Judicial Council” and not as “Judicial Service Commission”. The Council is the governing body responsible of the supervision of the operation of the judicial offices, the Judges and auxiliary staff. In fact, under this law, issues related to appointments, transfer, promotion and separation of members of the judiciary are subject to the “binding recommendation” of the Higher Judiciary Council (Article 28) It has members consisting of the President of the Supreme Court, who serves as the Council’s Chairman, the Attorney General, the members of the Supreme Court, and three members who were not to be MPs or practicing attorneys, elected by the National Assembly for a period of three years term. In 1965 the three members were: Sheikh Mohamed Gabballe, Sheikh Abdullahi Beghedi and Haji Ahmed Ali Shermarke. (Somali News June 25, 1965).
Nobody has provided of what irremissibly need was there to justify the change the name of the Council. The least one could say is that it is just a case of copycat version of some Common Law countries. While this and other problems are being raised, a more serious legal problem emerges: The Law on the Judiciary of 1962 has in practice ceased to exist as a law having force in the country in 1974 for it had already been repealed by Law N. 34 of 22 September, 1974. Ordinamento Giudiziario. (Bollettino Ufficiale L. 1 R.L. 10 del 10 Ottobere 1974)
There are, in my view, two anomalies in the present law:
(1) This Law, instead of limiting the attention solely on the articles dealing with the “Higher Judiciary Council” (Articles 27 to 29), it has repealed, unnecessarily, the entire Law on the Organization of the Judiciary 1962.
(2) But, perhaps, the most serious anomaly of this new Law is represented by the fact that it repeals, in 2014, a law which did not exist and had ceased to have force of law in the country in 1974.
The functions of the Attorney General and the Garyaqaanka Guud in the Somalia
Of late, one of the questions frequently asked has been about the attributions of the Attorney General, (Pubblico Ministero) and those of State Attorney (Garyaqaanka Guud ee Dowladda) and how their functions and the issues they deal with differ from each other. An attempt is made here to shed light on the functions and mandates the law vests in each of the two above-mentioned government offices.
In Civil and Common Law countries, the Attorney General does not perform the same functions and responsibilities. In Somalia, for instance, a Civil Law country, the Attorney General, known also as Prosecutor General, is not the Legal Advisor to Government as the case is in the Common Law countries. In Somalia, the Attorney General draws its mandate from Article 15 of the Law on the Organization of the Judiciary of 1962. His duties are to institute and conduct criminal proceedings; to institute and conduct or intervene in civil proceedings when he considers that public interest is involved; and to prefer appeals in civil and criminal matters as provided by law. He and his deputies are members of the Judiciary, a concept alien to the Common law world.
By contrast, in Kenya and Uganda, two Common Law countries, the Constitution vests in the Attorney General the responsibility of being the Principal Legal Adviser to the Government and they are ex officio (by virtue of their positions) Members of Parliament and Cabinet. In Kenya, Uganda and other Common Law Countries, the Director of Public Prosecution (DOPP) is the official in charge with the prosecution of criminal offences, a function, as said earlier, performed in Somalia by the Attorney General/Prosecutor General. In the United States (Common law country), the mission of the Office of the Attorney General is to supervise and direct the administration and operation of the Department of Justice and is a member of the Cabinet. He represents the United States in legal matters.
In Somalia, the functions of Legal Advisor to the Government are vested in the State Attorney “Garyaqaanka Guud” and not in the Attorney General/Prosecutor General (Vide Law n. 18 of 29 January, 1976). The State Attorney and his office represent the Government in legal matters and this was the case since the days of the UN trusteeship regime in the 50s. In recent times, however, we have grown accustomed to see the Prosecutor General frequently appearing on national TV and delivering statements on the ongoing maritime delimitation dispute between Somalia and Kenya pending before the International Court of Justice (ICJ) It is not clear whether formal legislations have been enacted in recent years transferring to the Prosecutor General the authority to represent the Government in foreign as well as domestic forum.
If the Garyaqaanka Guud (State Attorney) loses the status of Principal Legal Advisor to the Government, then legitimate questions arise as to the raison d’être of his Office.
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