SomalilandLaw.com Comments on Somaliland Legal News: September 2006

On 27 August 2006, the Somaliland Armed Forces Court of first instance sitting at Hargeysa sentenced four Hargeysa Prison officers to prison for terms ranging from one year to nine years. The officers were at a prison watch when, on 27 March 2006, six prisoners detained for terrorism offences attempted to escape. This was a serious incident concerning dangerous prisoners, and the officers were accused of dereliction of duty and other charges under (we assume) the 1963 Somali Code of Military Criminal Law in Peace and War (as amended).

Somalilandlaw.com’s concern about this matter is the fact that 15 years after the dictatorship, we are still dealing with prison officers (and police officers) as members of the armed forces, rather than as members of uniformed law enforcement public officers.

The incorporation of the corrections (or custodial) corps and the police into the “armed forces” (ciidamda qalabka sida) started with the onset of the military dictatorship in 1969 when the military junta co-opted some police generals, but not the prisons “general”. Siyad Barre’s Constitution mentioned the duties of the “armed forces” under Articles 108 which included fighting the enemies inside and outside! In contrast, the 1960 Somali Republic Constitution mentions briefly the police separately from the “Armed Forces” in Article 97(4) in their role of working with the judiciary. So what is the position under the Somaliland Constitution? Like the 1960 Constitution, the Somaliland Constitution mentions the Police and Corrections “Forces” (Ciidamada Bileyska iyo Asluubta) in Article 124 separately from the National Armed Forces or, more literally, the National Force (Ciidanka Qaranka) which is dealt with in Article 123. The duty of the National Armed Forces is the protection and defense of the country. Although both the police and the corrections corps are referred to in the Constitution as “ciidan” i.e force, their duties are described in Article 124 as being “protecting the peace and enforcing the law” in respect of the police and “guarding and reforming prisoners” in respect of the corrections force.

As for the relevant courts, Article 100(5) of the Somaliland Constitution says that Somaliland shall have, in addition to the normal courts, courts for “the National Forces” (Ciidamada Qaranka) and Article 104 adds that the courts of the Forces shall have special jurisdiction in hearing criminal charges brought against members of the National Armed Forces ( Ciidamada Qaranka) in times of peace and war. Both these Articles talk about “Forces” (Ciidamada) in plural whilst Article 123 refers to the “National Force” (Ciidanka Qaranka), which suggests that the other “forces” are those mentioned in the following Article 124, i.e those of the police and the Corrections. But, if that is the case, why not deal with them all in one Article as in the Siyad Barre Constitution and more importantly why refer to one of them only as the “National Force” (Ciidanka Qaranka)? So there are two possible interpretations:

With these difficult issues about interpretation, I am not surprised that an assumption was made that Military Courts were the right forum for these cases against the prison officers, but there are enough arguments, in my view, for a definitive interpretation to be sought from the Constitutional Court. The preamble to the Constitution sets out some of the principles underlying the Constitution and emphasizes that the dictatorship era practices and constitution which were not grounded on the nation’s beliefs, culture and aspirations will be swept away. In a democracy, policing is by consent and continuing to have “militarized” police and corrections services is not conducive to the establishment of a regime where such officers see themselves as servants of the people, rather than their oppressors.

Until the Constitution is changed to make this issue much more clearer, Somlilandlaw.com urges that:

Somalilandlaw.com

7 September 2006