Somalia

Somalia

*Please note this is just a draft and all contents are still under revision.*

Legal System/History

Somali Republic formed 1^st July 1960, upon union of British Somaliland (independent from 26^th June) and Italian Somaliland (independent from Italian-administered UN trusteeship 1^st July). Importation of British-Indian legislation in north in late 19^th and early 20^th century. British promulgated Natives Betrothal and Marriage Ordinance 1928 and Qadis’ Courts Ordinance 1937 specific to Somaliland. Subordinate Courts Ordinance 1944 repealed 1937 Ordinance, limiting jurisdiction of Qadis’ Courts to matters of personal status. Under Italian rule in south, well developed system of Qadis’ Courts; retained jurisdiction over civil and minor criminal matters.

Upon independence, Republic faced with task of unifying legislation and judicial structures drawn from Italian, British, customary and Islamic legal traditions. After 1969 military coup, new regime embarked on programme of legal reform based on scientific socialism. Early to mid-1970s, debate regarding family law reform led to appointment of a commission to prepare draft code. Draft enacted in 1975. Aimed to abolish customary laws and abrogated previous British and Italian era legislation on family law. Article 1 of Family Code 1975 provides that leading doctrines of Shafi’i school, and general principles of Islamic law and social justice are to serve as residuary sources of law.

Civil war started in 1991. Collapse of UN peacekeeping mission in 1995. In August 2000, a majority of Somali leaders signed a transitional charter, to be in force for 3 years, and elected a parliament for the transition period.

School(s) of Fiqh

Majority of Muslims are Shafi’i; Christian minority.

Constitutional Status of Islam(ic Law)

Current Constitution adopted August 1979. Article 3 (Sec. 1, Ch. 1) declares Islam state religion.

Court System

After independence, shari’a and customary courts formally recognised as Courts of Qadis. Jurisdiction limited to civil matters such as marriage and divorce.

Regular court system has four levels: Supreme Court, courts of appeal, regional courts and district courts. District courts in two sections, civil and criminal. Civil section has jurisdiction over all cases arising from shari’a or customary law or civil cases where matter in dispute does not exceed 3000 Somali shillings. Judges directed to consider shari’a or customary law in rendering decisions. Regional courts in three sections, civil and criminal (first instance), assize, and labour. Courts of appeal in two sections: general appeals and assize appeals.

Relevant Legislation

Judicial Organisation Law 1974

Family Code 1975 (no. 23/75)

Notable Features

Marriage Age: minimum marriage age is 18 years for both parties; female party may marry at 16 with guardian’s consent; Court may grant exemption from minimum age requirements in case of necessity

Marriage Guardianship: girl who has reached 16 years, but is under 18 years may be represented in contract of marriage by father (in absence of father, guardians in order are: mother, grandfather, elder brother, uncle, Court-appointed guardian or judge); Court also empowered to overrule objection of guardian to marriage of female ward between 16 and 18 years

Marriage Registration: marriage to be registered at neared District Court or authorised office within 15 days (40 days for residents of rural areas); failure to register punishable by fine; essential elements of marriage outlined in Article 6 are: proposal and acceptance by contracting parties before two witnesses; marriage contracted under compulsion is invalid

Polygamy: man may not contract second marriage without written permission of District Court; Court’s authorisation requires ascertainment of one of following conditions: sterility of wife of which husband was not aware at time of marriage, attested by panel of doctors; incurable chronic or contagious illness of wife, certified by a doctor; wife’s sentencing to more than two years in prison; wife’s unjustified absence from matrimonial home for more than one year; or existence of social necessity (not defined)

Obedience/Maintenance: legislation states that marriage is based on equal rights and duties; husband is declared head of the family, parties are obliged to cohabit, and wife is obliged to follow her husband; both parties obliged to share expenses of matrimonial home in proportion to their incomes if they are able to do so; if either party fails in duty to maintain and is not destitute, other party may obtain Court order for maintenance (sums and time period for arrears of maintenance not specified; Court empowered to award interim maintenance and authorise claimant to contract debts against defaulting partner if s/he finds it impossible to obtain maintenance from defaulter

Talaq: Family Code provides that right of talaq belongs to husband "subject to the authorisation by the competent court"; court may authorise divorce only after reconciliation efforts (of 60 days) have failed, and court may not authorise more than one talaq at a time; divorce by a minor, insane person, or pronounced under compulsion is invalid

Judicial Divorce: either party may seek judicial dissolution on following grounds: incurable disease of other spouse making cohabitation dangerous or impossible; disappearance of other party for period of over four years; habitual failure to maintain by other party; serious disagreement between spouses making conjugal life impossible (after reconciliation efforts of 60 days); perpetual impotence or sterility of other party; and other spouse’s sentencing to over four years imprisonment

Wife is entitled to seek dissolution if husband has been granted permission to marry polygamously by District Court, on condition that there are no children

Post-Divorce Maintenance/Financial Arrangements: where reason for talaq or faskh is deemed to be husband’s fault, Court shall order him to maintain former wife for three months to one year; if wife is deemed to be at fault, Court shall order her to pay husband sum not less than her dower in compensation

Child Custody and Guardianship: mother entitled to custody of male children until age of 10 and female children until age of 15, with court empowered to extend custody until age 18 for male or female ward if s/he is not able to look after him/herself; if mother remarries and husband is within prohibited degrees to ward(s), or in case she is widowed and remarries, she may retain custody; maintenance of children is duty of both parents until age of majority for sons and marriage or financial independence/gainful employment for daughter

Succession: testate succession limited to one-third of estate, unless consent of heirs is obtained; bequest in favour of an heir also invalid unless consent of other heirs is obtained; Article 158 states that "In conformity with the principles of the 1^st and 2^nd Charter of the Revolution females and males shall have equal rights of inheritance"; heirs are identified as: spouses, children, grandchildren, parents, grandparents, full siblings, paternal and maternal aunts and uncles; widow or widower entitled to half of estate if there are no children or grandchildren, or one fourth if there are; sons and daughters to receive equal shares, and same applies to grandchildren; shares of other heirs also specified in Code, as are grounds for inclusion or exclusion of heirs and reduction of shares

Notable Cases

Law/Case Reporting System

Laws are published through Official Gazette.

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – accession 1990, without reservations

Legal History:

The Somali Republic was formed on 1^st July 1960, upon the union of British Somaliland which gained independence on 26^th June, and Italian Somaliland which gained independence from Italian-administered UN trusteeship on 1^st July. Early legislation in British Somaliland was based on the importation of British-Indian legislation in the late 19^th and early 20^th century. The British promulgated later promulgated the Natives Betrothal and Marriage Ordinance 1928 and Qadis’ Courts Ordinance 1937 specific to Somaliland. The Subordinate Courts Ordinance 1944 repealed 1937 Ordinance, limiting the jurisdiction of Qadis’ Courts to matters of personal status. Under Italian rule in the south, there was a well developed system of Qadis’ Courts which retained jurisdiction over civil and minor criminal matters.

Upon independence, the Republic was faced with the task of unifying legislation and judicial structures drawn from Italian, British, customary and Islamic legal traditions. After a military coup in 1969, the new regime embarked on a programme of legal reform based on scientific socialism. In the early to mid-1970s, debate regarding family law reform led to the appointment of a commission to prepare a draft code. The draft produced by the commission was enacted in 1975 with significant modifications made by President Siad Barre and the Secretary of State for Justice and Religious Affairs Abdisalem Shaykh Hussain. The Code aimed to abolish customary laws, and abrogated previous British and Italian era legislation relating to family law. Article 1 of the Family Code 1975 provides that the leading doctrines of the Shafi’i school, and general principles of Islamic law and social justice are to serve as residuary sources of law.

Civil war ensued after the ousting of Barre in January of 1991, with competition for power between various factions. The collapse of the UN peacekeeping mission led to a final pullout of international troops in spring 1995. In August 2000, a majority of Somali leaders signed a transitional charter, to be in force for 3 years, and elected a parliament for the transition period.Fighting continues in the south with some orderly government established in the north.

Schools of Fiqh: The majority of Muslims are Shafi’i. There is a small Christian minority.

Constitutional Status of Islam(ic Law): The current Constitution was adopted in August 1979. Article 3 (Section 1, Chapter 1) declares Islam the state religion.

Court System: After independence, the shari’a and customary courts were formally recognised as Courts of Qadis. Their judicial role is very small and jurisdiction is limited to civil matters such as marriage and divorce.

The regular court system is constituted at four levels: Supreme Court, courts of appeal, regional courts and district courts. District courts have two sections, civil and criminal. The civil section has jurisdiction over all cases arising from shari’a or customary law or civil cases where the matter in dispute does not exceed 3000 Somali shillings. Judges are directed to consider shari’a or customary law in rendering decisions. Regional courts are divided into three sections, civil and criminal (first instance), assize, and labour. Courts of appeal are divided into two sections: general appeals and assize appeals.

Notable Features: The minimum marriage age is 18 years for both parties. The female party may marry at 16 years with her guardian’s consent, and the Court may grant an exemption from the minimum age requirements in case of necessity. A girl who has reached 16 years but is under 18 years may be represented in the contract of marriage by her father (in the absence of the father, the guardians in order are: mother, grandfather, elder brother, uncle, a Court-appointed guardian or judge). The Court is also empowered to overrule the objection of a guardian to the marriage of a female ward between 16 and 18 years.

Marriage is to be registered at the nearest District Court or authorised office within 15 days (40 days for residents of rural areas); failure to register is punishable by a fine. The essential elements of marriage as outlined in Article 6 are: proposal and acceptance by the contracting parties before two witnesses. A marriage contracted under compulsion is invalid. A man may not contract a second marriage without the written permission of the District Court. The Court’s authorisation requires ascertainment of one of the following conditions: sterility of the wife of which the husband was not aware at the time of marriage, attested by a panel of doctors; incurable chronic or contagious illness of the wife, certified by a doctor; the wife’s sentencing to more than two years in prison; the wife’s unjustified absence from the matrimonial home for more than one year; or the existence of social necessity (grounds for which are not defined).

The Family Code provides that marriage is based on equal rights and duties; the husband is declared the head of the family, the parties are obliged to cohabit, and the wife is obliged to follow her husband. Both parties are obliged to share the expenses of the matrimonial home in proportion to their incomes if they are able to do so. If either party fails in his/her duty to maintain and is not destitute, the other party may obtain a Court order for maintenance (the sums and time period for arrears of maintenance are not specified). The Court is empowered to award interim maintenance and authorise the claimant to contract debts against the defaulting partner if s/he finds it impossible to obtain maintenance from the defaulter.

The Family Code provides that the right of talaq belongs to the husband "subject to the authorisation by the competent court". The Court may authorise divorce only after reconciliation efforts (of up to 60 days) have failed, and the Court may not authorise more than one talaq at a time. Divorce by a minor or insane person, or pronounced under compulsion is declared invalid. Either party may seek a judicial dissolution on the following grounds: incurable disease of the other spouse making cohabitation dangerous or impossible; disappearance of the other party for a period of over four years; habitual failure to maintain by the responsible party; serious disagreement between spouses making conjugal life impossible (after reconciliation efforts of up to 60 days); perpetual impotence or sterility of the other party; and the other spouse’s sentencing to over four years imprisonment. The wife is entitled to seek a dissolution if the husband has been granted permission to marry polygamously by the District Court, on condition that there are no children from the marriage. Where the reason for a talaq or faskh is deemed to be the husband’s fault, the Court shall order him to maintain his former wife for three months to one year; if the wife is deemed to be at fault, the Court shall order her to pay her husband a sum not less than her dower in compensation. The mother is entitled to custody of male children until the age of 10 and female children until the age of 15, with the Court empowered to extend custody until age 18 for the male or female ward if s/he is not able to look after him/herself. If the mother remarries and the husband is within the prohibited degrees to the ward(s), or in case she is widowed and remarries, she may retain custody. Maintenance of children is the duty of both parents until the age of majority for sons and until marriage or until she is able to support herself through gainful employment for the daughter.

The power of the testator to make a bequest is limited to one-third of the estate, unless the consent of the heirs is obtained. A bequest in favour of an heir is similarly limited by requiring the consent of the other heirs. Article 158 states that "In conformity with the principles of the 1^st and 2^nd Charter of the Revolution females and males shall have equal rights of inheritance". Heirs are identified as: spouses, children, grandchildren, parents, grandparents, full siblings, paternal and maternal aunts and uncles. The widow or widower is entitled to half of the estate if there are no children or grandchildren, or one fourth if there are. Sons and daughters are entitled to equal shares, and the same applies to grandchildren. The shares of other heirs are also specified in the Code, as are grounds for inclusion or exclusion of heirs and reduction of shares.

Notable Cases:

Law/Case Reporting System: Laws are published through the Official Gazette.

International Conventions (with Relevant Reservations): Somalia acceded to the ICCPR and ICESCR in 1990, without reservations.

Background and Sources: Gavlak, "Somalia's New President Works to Build Peace," Christian Science Monitor, Sept. 14, 2000; Mahmood, "Somalia" in Statutes of Personal Law in Islamic Countries, 2^nd ed., New Delhi, 1995; Nelson, ed., Somalia: A Country Study, 3^rd ed., Washington, D.C., 1983; Pearl, A Textbook on Muslim Law, London, 1979; Redden, "Somalia" in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990.

Legal System/History	Somali Republic formed 1^st July 1960, upon union of British Somaliland (independent from 26^th June) and Italian Somaliland (independent from Italian-administered UN trusteeship 1^st July). Importation of British-Indian legislation in north in late 19^th and early 20^th century. British promulgated Natives Betrothal and Marriage Ordinance 1928 and Qadis’ Courts Ordinance 1937 specific to Somaliland. Subordinate Courts Ordinance 1944 repealed 1937 Ordinance, limiting jurisdiction of Qadis’ Courts to matters of personal status. Under Italian rule in south, well developed system of Qadis’ Courts; retained jurisdiction over civil and minor criminal matters. Upon independence, Republic faced with task of unifying legislation and judicial structures drawn from Italian, British, customary and Islamic legal traditions. After 1969 military coup, new regime embarked on programme of legal reform based on scientific socialism. Early to mid-1970s, debate regarding family law reform led to appointment of a commission to prepare draft code. Draft enacted in 1975. Aimed to abolish customary laws and abrogated previous British and Italian era legislation on family law. Article 1 of Family Code 1975 provides that leading doctrines of Shafi’i school, and general principles of Islamic law and social justice are to serve as residuary sources of law. Civil war started in 1991. Collapse of UN peacekeeping mission in 1995. In August 2000, a majority of Somali leaders signed a transitional charter, to be in force for 3 years, and elected a parliament for the transition period.
School(s) of Fiqh	Majority of Muslims are Shafi’i; Christian minority.
Constitutional Status of Islam(ic Law)	Current Constitution adopted August 1979. Article 3 (Sec. 1, Ch. 1) declares Islam state religion.
Court System	After independence, shari’a and customary courts formally recognised as Courts of Qadis. Jurisdiction limited to civil matters such as marriage and divorce. Regular court system has four levels: Supreme Court, courts of appeal, regional courts and district courts. District courts in two sections, civil and criminal. Civil section has jurisdiction over all cases arising from shari’a or customary law or civil cases where matter in dispute does not exceed 3000 Somali shillings. Judges directed to consider shari’a or customary law in rendering decisions. Regional courts in three sections, civil and criminal (first instance), assize, and labour. Courts of appeal in two sections: general appeals and assize appeals.
Relevant Legislation	Judicial Organisation Law 1974 Family Code 1975 (no. 23/75)
Notable Features	Marriage Age: minimum marriage age is 18 years for both parties; female party may marry at 16 with guardian’s consent; Court may grant exemption from minimum age requirements in case of necessity Marriage Guardianship: girl who has reached 16 years, but is under 18 years may be represented in contract of marriage by father (in absence of father, guardians in order are: mother, grandfather, elder brother, uncle, Court-appointed guardian or judge); Court also empowered to overrule objection of guardian to marriage of female ward between 16 and 18 years Marriage Registration: marriage to be registered at neared District Court or authorised office within 15 days (40 days for residents of rural areas); failure to register punishable by fine; essential elements of marriage outlined in Article 6 are: proposal and acceptance by contracting parties before two witnesses; marriage contracted under compulsion is invalid Polygamy: man may not contract second marriage without written permission of District Court; Court’s authorisation requires ascertainment of one of following conditions: sterility of wife of which husband was not aware at time of marriage, attested by panel of doctors; incurable chronic or contagious illness of wife, certified by a doctor; wife’s sentencing to more than two years in prison; wife’s unjustified absence from matrimonial home for more than one year; or existence of social necessity (not defined) Obedience/Maintenance: legislation states that marriage is based on equal rights and duties; husband is declared head of the family, parties are obliged to cohabit, and wife is obliged to follow her husband; both parties obliged to share expenses of matrimonial home in proportion to their incomes if they are able to do so; if either party fails in duty to maintain and is not destitute, other party may obtain Court order for maintenance (sums and time period for arrears of maintenance not specified; Court empowered to award interim maintenance and authorise claimant to contract debts against defaulting partner if s/he finds it impossible to obtain maintenance from defaulter *Talaq: Family Code provides that right of talaq* belongs to husband "subject to the authorisation by the competent court"; court may authorise divorce only after reconciliation efforts (of 60 days) have failed, and court may not authorise more than one talaq at a time; divorce by a minor, insane person, or pronounced under compulsion is invalid Judicial Divorce: either party may seek judicial dissolution on following grounds: incurable disease of other spouse making cohabitation dangerous or impossible; disappearance of other party for period of over four years; habitual failure to maintain by other party; serious disagreement between spouses making conjugal life impossible (after reconciliation efforts of 60 days); perpetual impotence or sterility of other party; and other spouse’s sentencing to over four years imprisonment Wife is entitled to seek dissolution if husband has been granted permission to marry polygamously by District Court, on condition that there are no children Post-Divorce Maintenance/Financial Arrangements: where reason for talaq or faskh is deemed to be husband’s fault, Court shall order him to maintain former wife for three months to one year; if wife is deemed to be at fault, Court shall order her to pay husband sum not less than her dower in compensation Child Custody and Guardianship: mother entitled to custody of male children until age of 10 and female children until age of 15, with court empowered to extend custody until age 18 for male or female ward if s/he is not able to look after him/herself; if mother remarries and husband is within prohibited degrees to ward(s), or in case she is widowed and remarries, she may retain custody; maintenance of children is duty of both parents until age of majority for sons and marriage or financial independence/gainful employment for daughter Succession: testate succession limited to one-third of estate, unless consent of heirs is obtained; bequest in favour of an heir also invalid unless consent of other heirs is obtained; Article 158 states that "In conformity with the principles of the 1^st and 2^nd Charter of the Revolution females and males shall have equal rights of inheritance"; heirs are identified as: spouses, children, grandchildren, parents, grandparents, full siblings, paternal and maternal aunts and uncles; widow or widower entitled to half of estate if there are no children or grandchildren, or one fourth if there are; sons and daughters to receive equal shares, and same applies to grandchildren; shares of other heirs also specified in Code, as are grounds for inclusion or exclusion of heirs and reduction of shares
Notable Cases
Law/Case Reporting System	Laws are published through Official Gazette.
International Conventions (with Relevant Reservations)	ICCPR & ICESCR – accession 1990, without reservations