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Legal Resources for Somalia

Somalia Constitution ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

Background

Somalia was founded on 1st July 1960 by a former British protectorate and an Italian colony who united to form the Somali Republic, though it was still constrained under British and Italian boundaries. On 20 July 1961, a new constitution was introduced and ratified by the people through a popular referendum

On 15 October 1969, then President Abdirashi Ali Shermake was assassinated by a policeman, with his assassination was quickly followed by a military coup, where the Somali Army seized power and took over. This was led by Mohamed Siad Barre (also known as Maxamed Siyaad Barre), who then held dictatorial rule over the country from October 1969 until January 1991 when he was overthrown in a civil war led by freedom fighters. In 1974, Somalia joined the Arab League before the country was plagued with severe drought that caused widespread starvation. In 1977, Somalia invaded the Ogaden region of Ethiopia, which was predominantly Somali-inhabited - this created an ongoing tension and underlying conflict between the two countries.iv However, in 1978, Somali forces were pushed out of Ogaden by the Ethiopians with help from Soviet advisors and Cuban troops - in March 1978, the Ethiopian government declared that the last border post had been regained, marking the official end of the war. The war left Somalia with a disorganized and demoralized army, as well as disapproval from its people, leading to a revolt in the army which eventually spiraled into the ongoing Somali Civil War. 1981 saw opposition beginning to build towards Siad’s regime after he chose to exclude certain groups from government positions, instead filling them with people of his own Marehan clan. By 1988, Somalia had reached a peace accord with Ethiopia, but this only provided stability for some time, as Mohmed Siad Barre was ousted in 1991 and a power struggle between clan warlords broke out, killing and wounding thousands of civilians.

After Siad’s fall from power, the war continued and there was just a lack of effective centralized government at the time. This created a lot of tension in the nation, and led to a de facto government declaring the formation of an independent Republic of Somaliland in the north in 1991 - it was not internationally recognized but experienced relative stability that almost directly contrasted the civil war in Somalia. In 1992, US Marines were sent to land near Mogadishu ahead of a UN peacekeeping force in an attempt to restore order in the divided state and safeguard relief supplies - this was done as part of a wider international humanitarian and peacekeeping effort, called Operation Provide Relief. The humanitarian effort seemed to be extremely difficult, as various Somali militias ignored the ceasefire that had been issued and engaged in extensive fighting, whilst also hijacking and looting international food convoys. The US intervention culminated in the Battle of Mogadishu in October 1993, where 18 US soldiers and hundreds of Somali militia fighters and civilians were killed. Technically, the mission was successful as they managed to apprehend several high-ranking associates but it was widely perceived as a failure due to the cost to human life. Soon after the Battle, President Clinton withdrew all US troops from Somalia, and in 1955 all of the UN troops were also withdrawn, having failed to achieve their mission.

In 1998, the autonomous region of Puntland (the Puntaland State of Somalia) was self-proclaimed in the northeast, though they have made it clear that, unlike Somaliland, they wish to be part of a federally united Somalia and have no desire for independence.

In August 2000, there was a meeting between clan leaders and senior figures who elected Abdulkassim Salat Hassan president of Somalia - this meeting was known as the Somalia National Peace Conference (SNPC) or Dijibouti Conference, where they chose the name Transitional National Government for the initiative they were trying to lead. October 2000 saw the introduction of Hassan and his newly appointed prime minister, Ali Khalif Galayadh, arriving in Mogadishu to a heroes’ welcome. Galaydh announced his government, which was the country’s first since the coup in 1991. However, in April 2001, Somali warlords, with support from Ethiopia, declined to support transitional government and so the hope for a central government was lost. In August 2004, a 14th attempt was taken to restore central government since 1991 - a new transitional parliament was inaugurated at a ceremony in Kenya and in October, Abdullahi Yusuf was elected as the president. From February 2005 to June 2005, the Somali government began to return home from their exile in Kenya, but there was tension as to where in Somalia the new parliament should have sat. Political unrest and tensions were still high in the wider country, and the Prime Minister Ali Mohammed Ghedi survived an assassination attempt in Mogadishu in November 2005.

In February 2006, the Transitional Government met for the first time since its formation in 2004 but the violence continued to worsen in the country despite a stabilizing government - the period of time from March to May saw some of the worst violence in almost a decade, with there being fierce fighting between rival militias in Mogadishu.

In mid-2006, Ethiopian troops entered Somalia in an attempt to depose the Somali Islamist group, the Islamic Court Union (ICU henceforth), but Al-Shabaab soon became more significant as their insurgency intensified whilst the ICU collapsed.v Whilst this was happening, Mogadishu’s air and seaports were re-opened in July, for the first time since 1995.vi In September, the Transitional Government and the ICU started to have peace talks, but these did not amount to much, and September also saw the first known suicide bombing targeting the President outside of Parliament in Baidoa.vii By the end of 2006, the Ethiopian National Defense Force and Transitional Federal Government had formed a coalition and, joined by a cover US contingent, were openly at war with the ICU. This led to the collapse of the ICU’s organizational structure, and the coalition forces then entered the capital city during the last days of the year.

The conflict between Islamist insurgents like al-Shabaab continued throughout the years, with 2009 seemingly being their high point. In January, Ethiopia completed its withdrawal of troops, and al-Shabaab was able to capture Baidoa which was formerly seen as a key government stronghold. May 2009 saw them launch an onslaught on Mogadishu and continue to advance in the south, all whilst famines in the country were worsening, and the UN World Food Programme was forced to withdraw from certain areas due to the conflict. It was only in July 2011 that al-Shabaab pulled out of Mogadishu in what it called a “tactical move”.

The Supreme Law of Somalia is currently the Provisional Constitution of the Federal Republic of Somalia - it provides the legal foundation for the existence of the Federal Republic and a source of legal authority. It sets out the rights and duties of its citizens and defines the structure of government. The Provisional Constitution was adopted on August 1, 2012, by a National Constitutional Assembly in Mogadishu. The provisional Constitution allows for a parliamentary system of government with the President as head of state and an appointed Prime Minister as the head of government. The country has a bicameral legislature, consisting of the Senate and the House of the People - together, they make up the Federal Parliament of Somalia. This was Somalia’s first formal parliament for more than 20 years, and it ended the eight-year transitional period. 2012 also saw the election of the first president since 1967, Hassan Sheikh Mohamud - he focused on rebuilding state institutions, security forces, and the economy, as well as launching offensives against the militant group al-Shabaab, allowing him to regain control of key cities.

In 2017, Mohamed Abdulahi Mohamed, more popularly known as Farmaajo, was elected as president, and he prioritized further security gains, economic development, and debt relief. He maintained his presidency until the 2021 elections, though these were complicated due to delays and irregularities which led to a lot of protests and ultimately, a political crisis. The election results resulted in a re-election for Hassan Sheik Mohamud in May 2022.

Modern history mostly revolves around the continued fight against al-Shabaab. The Federal Government of Somalia and AMISOM (African Union Mission in Somalia) have continued to battle al-Shabaab, and they have had some success in regaining territory and weakening the group, though al-Shabaab is one of many groups who remain real threats and continue to carry out attacks in Somalia. The civil war has left Somalia dealing with a drought and humanitarian crisis, so many people are being left without food and water. This has left millions of people suffering from hunger and malnutrition, and the situation is particularly bad in areas that are controlled by al-Shabaab

The Legal system

Somalia has a mixed system, consisting of civil, common, Sharia, and customary law - it is called Xeer.viii The Provisional Constitution clarifies the hierarchy of laws in Somalia, and confirms that Islam has a role to play in the State; Article 4 of the Constitution states that “after the Shari’ah, the Constitution of the Federal Republic of Somalia is the supreme law of the country”.ix Xeer is considered to be polycentric, as different groups within Somali society seem to have different interpretations of what it means.

Xeer justice usually revolves around family ties and contracts - it maintains the patriarchal structure.x Xeer is clan law. In xeer, crimes are considered transgressions against property rights and so justice is directed in the form of material compensation to the victim. There is no concept of imprisonment under xeer, and there can be cases where the elders, who often act as judges, may advise that neither side seek restitution or retribution

Legal Aid

State Sponsored legal aid

There is limited funding in Somalia for the formal court system, and so the provision of legal aid is not widely available. In the Provisional Constitution, it is stated that every child has the right to legal aid paid for by the state if they might otherwise suffer injustice (Article 29(5)xii) and that the state shall provide free legal defense to the people who do not have the means of doing so themselves (Article 34(4)xiii). Free legal representation for defendants who face serious criminal charges is not often available in the South-Central regions but there are some functioning legal aid clinics at Mogadishu University and City University Law School that provide some legal services.

If no State Sponsored Legal aid exists, mention existing NGOs providing pro bono legal

The Somali Legal Aid Network (SLAN) brings together sixteen legal aid NGOs across Somaliland, Puntland, Jubbaland, and the south-central regions of Somalia. The SLAN allows legal aid providers to share information about common challenges and successful strategies to provide marginalized groups with access to justice. The Somali Legal Aid Network is made up of the following organizations:

Save Somali Women and Children

Somali Women’s Development Centre

Elman Centre

Association of Somali Women Lawyers

Serve Women And Children Empowerment Development Agenda (SWACEDA)

Somali Young Lawyers Association

New Dawn

Justice Watch Associate

Somalia Women Development Network (SOWDEN)

Puntland Women Lawyers Association (PUWLA)

Puntland Legal Aid Centre (PLAC)

Puntland State University (PSU) Legal Aid Clinic

Somaliland Women Lawyers Association (SWLA)

Somaliland Lawyers Association (SOLA)

University of Hargeisa Legal Aid Clinic

Amount University Legal Aid Clinic

The UN also set up the United Nations Development Programme (UNDP) in Somalia, Somaliland, and Puntland, in an attempt to provide legal aid assistance to those charged with or convicted of piracy-related offenses. They provided 24 lawyers (19 in Somaliland, 5 in Puntland) and in 12 months, it seemed that legal representation had been provided to 536 people in Puntland, 1380 in Somaliland, and 785 in the South Central region. The UNDP works closely with UNODC *United Nations Office on Drugs and Crime) and UNICEF, as well as collaborating with UNHCR (United Nations High Commissioner for Refugees).

Source of Defendants Rights

National Sources:

The main national source of Defendant’s rights in Somalia is the Provisional Constitution which promotes human rights. Article 11 outlines how all citizens will have equal rights and duties before the law. Article 12 guarantees that the fundamental rights and freedoms recognised in this section of the Constitution shall always be respected in the making and application of the law, only being able to be limited as provided by Article 38. Article 14 prohibits slavery, servitude, trafficking, and forced labor. Article 15 clarifies that every person has the right to personal security, and establishes that this right shall be safeguarded through the prohibition of illegal detention, all forms of violence, torture or inhumane treatment. Article 16 protects the right to freedom of association, and Article 18 protects the right to freedom of speech, expression, and opinion. Article 17 protects freedom of religion and belief, but also makes it clear that no religion other than Islam can be propagated in the Federal Republic of Somalia. Article 20 protects freedom of protest and Article 22 protects the right of political participation. Article 34 protects access to the courts, setting out that every person has the right to a fair public hearing, and that the state shall provide free legal defense to individuals or communities if they are legally pursuing the public interest. Article 35 sets out the rights of the accused, saying that they are presumed innocent until proven guilty by a court of law, that every arrested or detained person has the right to be informed of the reason, and this right will also extend to family and relatives. Article 35 also establishes that defendants have the right not to the self-incriminated and evidence that is based on coercion is not admissible, that everyone who is arrested or detained has the right to choose and consult with a practitioner before the fair trial that they are entitled to. Finally, Article 35 also established that the accused cannot be kept in an illegal detention center and that criminal liability is only attributable if you commit the offense yourself, and if the crime was an offense at the time it was committed. Article 36 outlines the extradition laws for the accused and criminals, and clarifies that this can only be done in accordance with international law and practice.

International Sources

Somalia is party to many international treaties and conventions that set out many protections for the rights of its citizens, including:

Human Rights Conventions and Protocols

Convention/Protocol	Signed	Ratified
Convention concerning Forced or Compulsory Labour	N/A	1960
Equal Remuneration Convention	N/A	1961
Abolition of Forced Labour Convention	N/A	1961
Convention relating to the Status of Refugees	N/A	1978
Protocol relating to the Status of Refugees	N/A	1978
African Charter on Human and People's Rights	1986	1985
African Charter on the Rights and Welfare of the Child	1991	N/A
Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment	N/A	1990
International Covenant on Civil and Political Rights	N/A	1990
International Convention on the Elimination of All Forms of Racial Discrimination	1967	1975
International Covenant on Economic, Social and Cultural Rights	N/A	1990
Convention on the Rights of the Child	2002	2015
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict	2005	N/A
Convention on the Rights of Persons with Disabilities	2018	2019

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures (Article 19(1) Constitution) “The home and other dwellings of the person shall be inviolable, and their entry, search or surveillance shall not be allowed without a reasoned order from a judge.” Not always explicitly outlined but accepted that arbitrary arrests and unlawful detentions are prohibited, though this is not always upheld.

Right Against Unlawful Detention
(Article 15(2) Constitution) “Every person has the right to personal security, which shall be safeguarded through the prohibition of illegal detention, all forms of violence, including any form of violence against women, torture, or inhumane treatment.”.
(Article 35(11)) “The accused cannot be kept in an illegal detention centre and must be granted visits by his or her family, doctor, or lawyer.”

Right Not to be Tortured or Ill-Treated (Article 15(2) Constitution) “Every person has the right to personal security, which shall be safeguarded through the prohibition of illegal detention, all forms of violence, including any form of violence against women, torture, or inhumane treatment.”

Right to Medical Care Not explicitly mentioned in the Constitution - there have been some reports that those detained or imprisoned do not have access to adequate medical care, and disease outbreaks in crowded prisons are common.

Right Against Self-Incrimination (Article 35(4) Constitution) “Every person may not be compelled to self-incriminate, and a verdict may not be based on evidence acquired by means of coercion”

Right to Counsel and Effective Assistance (Article 35(6)Constitution) “Every person who is arrested or detained has the right to choose, and to consult with a legal practitioner, and if he or she can’t afford one, the government must appoint a legal practitioner for him or her”

Right to a Present a Defense (Article 15(9) Constitution) “The accused has the right to challenge the evidence presented against him or her”

Right to Due Process (Article 33 Constitution) “Every person has the right to administrative decisions which are lawful, reasonable and conducted in a procedurally fair manner” (Article 34(2) Constitution) “Every person has the right to a fair public hearing by an independent and impartial court or tribunal, to be held within a reasonable time, and to determine:” Any question of civil rights and obligations; or Any criminal charge The lack of an independent and functioning judiciary means that the right to due process is not always enforced.

Right to Equal Protection of the Laws (Article 11(1) Constitution) “All citizens regardless of sex, religion, social or economic status, political opinion, clan, disability, occupation, birth or dialect shall have equal rights and duties before the law.”

Right to be Informed of Charges Outlined in Article 35(2) “Every person arrested or detained has the right to be informed promptly of the reason for their arrest or detention in a language which the person understands” Also applies to family and relatives, as in Article 35(3) “Every person arrested or detained shall have the right for his or her family and relatives to be informed of his or her situation”

Right to Presumption of Innocence (Article 35(1) Constitution) “The accused is presumed innocent until proven guilty in a final manner by a court of law"

Right to Bail The accused may have the right to bail in certain circumstances, depending on the charges that they are accused of. Bail can only be granted on condition of a guarantee being met (which can be an amount of money or a promise of paying an amount if you violate your bail). There is a right to appeal the refusal of bail. Bail conditions are not subject to any form of periodic review and can’t be changed or removed on application by the individual (either directly or through their legal representative)

Right Against Ex Post Facto Prosecution (Article 35(13) Constitution) “No person may be convicted of a crime for committing an act that was not an offense at the time it was committed unless it is a crime against humanity under international law"

Right Against Double Jeopardy (Article 35(12) Constitution) “Criminal liability is a personal matter, and no person may be convicted of a criminal offense for an act committed by another person.”

Right to a Fair Trial
Article 33 - “Every person has the right to administrative decisions which are lawful, reasonable and conducted in a procedurally fair manner”
Article 34(2)- “Every person has the right to a fair public hearing by an independent and impartial court or tribunal, to be held within a reasonable time, and to determine:” Any question of civil rights and obligations; or Any criminal charge
Article 35(1) - “The accused is presumed innocent until proven guilty in a final manner by a court of law.”

Right to a Trial by Jury Jury is never practiced in Somalia. According to the Judiciary Organisation Act and the Criminal Procedure Code, judges hear and decide the cases. Serious cases such as murder have accessory judges.
Right to a Speedy Trial Article 35(5) - “Every person who is arrested has the right to be brought before a capable court within 48 hours of the arrest.”
Right to an Impartial Judge Article 34(2) - “Every person has the right to a fair public hearing by an independent and impartial court or tribunal, to be held within a reasonable time, and to determine:”
Right to Language Interpretation Article 35(10) - “The accused has the right to an interpreter if the accused person does not understand the language being used in the court.“

Right to Habeas Corpus Right to habeas corpus was abolished by the Barre government in 1970, but was thought to have been reinstated with his introduction of a more liberal constitution in 1979. The Criminal Procedure Code applicable in Somalia now has a habeas corpus clause.

Capital Punishment Capital punishment is a legal penalty in Somalia. Legally sanctioned executions of the death penalty are carried out by shooting, in accordance with the 1962 Somali Penal Code and the Military Penal Code. Since at least 2000, all executions have been applied without official sanction by insurgent militias because of the instability of government, and the ongoing civil war. Both officially sanctioned and extrajudicial executions often happen in public.

Right to Appeal (Article 35(9) Constitution) “The accused has the right to challenge the evidence presented against him or her.” The law gives people the right to challenge the lawfulness of the arrest or detention in court, but only politicians and some businesspeople can really exercise this right effectively

Capital Punishment Capital Punishment is a prescribed form of punishment under the laws of Qatar. The Penal Code states that a death sentence may be prescribed as a punishment for certain felonies. The Criminal Procedure Code provides that the judgment of the death penalty shall not be executed summarily. Further, there is a condition that the death sentence cannot be executed without the ratification by the Emir. Further, the mode of death punishment has been described as being by way of hanging or gunfire to death

Rights of Counsel

Right to Provide Representation The right to have representation is constitutionally protected, so the right to provide representation is heavily implied.

Article 34 says that access to the courts is constitutionally protected.
Article 33 protects the right to just administrative decisions.

Right of Access to the Client Theoretically, counsel do have rights to access the clients in Somalia, but political interference in the judiciary means that for many cases, particularly those involving criticism of the government or influential groups working in the conflict, access is limited or very monitored.

Right to Information Article 32 states that everyone has the right of to access information, but this is not always the case in practice. Has been said that lawyers have been threatened on occasion for the information that they have or have been asking for.

Right to Confidential Communication with the Client There have been many complaints that lawyers do not have the ability to have confidential and secure conversations with their clients.

Means of Protecting and Enforcing Rights

Exclusionary Rule Somalia’s constitution does not explicitly establish an exclusionary rule but does guarantee relevant fundamental rights, including the right to privacy (Article 15) and the freedom from arbitrary arrest and detention (Article 25).

Nullity of Procedure Is provided by the Criminal Procedure Code.

Motions After the trial, there is always an opportunity to invoke a motion to appeal.

Contempt Somalia has an idea of contempt of court, though there is no specific law that codifies it. The idea is generally understood and applied based on sources like the constitution, which lists fundamental rights that can be used to interpret the scope of permissible conduct and the influence of systems like that of the UK and Italy. Civil Actions The Civil Procedure Code provides clauses of Civil Actions.

Pre-Trial Procedure

Police procedures

Complaint/information Information and complaints can be made to a Judge, to the Office of the Attorney General, or to police officers.xxvii Complainants cannot bring complaints more than one month after they knew about the “act constituting the offense”xxviii They also cannot bring complaints to the police if a settlement has already been reached through Xeer, if they actually or implicitly renounce their rights, or if they have started civil proceedings for damages already.xxix Rights can be implicitly renounced by “performing acts incompatible with the intention to exercise that right”xxx Complaints can be written and signed or made orally. If made orally, it should be recorded, read back to the complainant, and signed.xxxi Any complaint can be withdrawn any time “before judgment is pronounced by the Court of first instance”xxxii
Arrest, Search and Seizure Laws
- Stops and Frisks There is some use of stop and search in Somalia - it is often used to increase police presence. Stop and search is often used in major intersections and more urban areas to try and limit or manage crime before it becomes a major problem.
- Arrests If the police want to make an arrest, they must apply to the Court for a warrant and notify the Office of the Attorney General, unless it is a case of “urgent necessity”. The accused should be informed of the reason for their arrest at the time and it should be immediately reported to the Attorney General’s Office and the Court. If there is an arrest without a warrant, the accused must be taken immediately (no later than 48 hours) to the “competent Court” or that closest to its arrest, where the police officer will present a summary report and the judge will decide whether the arrest without the warrant was lawful. If the arrest is lawful without a warrant, the arrest will be confirmed, and he will either be remanded or released on bail. If a judge does not confirm the arrest within 8 days of the arrest, the accused must be released.
Pre-trial detention The length of time someone can be held pre-trial depends on the offense, its severity, and the court it will be tried in.xxxix
- 45 days for the crimes within the competence of the Ordinary Section of the Regional Court
- 60 days for the other crimes within the competence of the Extraordinary Section of the Regional Court
- 90 days for the crimes pending before the Extraordinary Section of the Regional Court and punishable with death penalty or life sentence.
Bail can be granted to avoid pre-trial detention. If it is granted in the arrest warrant, it can be that the accused avoids pre-trial detention altogether.
Bail can only be granted by a judge.
The Court has the discretion to revoke bail and issue an arrest warrant in various circumstances.
Searches Police are being trained to become specialist and robust units who can pave the way fr civilian police officers to take over from the military police - they are being trained to properly conduct searches by the African Union Mission in Somalia with support from the EU.xlii Enforcing the Rules (Exclusionary Rule, Nullity, and other procedures to protect against illegal police procedures)
Lineups and other identification procedures
- Other identification procedures In 2019, DNA evidence was used for identification in court for the first time. Forensics are recognized to be important but they are not widely available because of limited availability and transportation of chemicals.
Interrogation
- After the Defendant is formally charged: After the defendant is formally charged, the investigation report compiled during the initial interrogation is taken to the judge, and they will use it to decide how the case will proceed. If the judge thinks that it is necessary to continue the investigation then it will return to an interrogation stage.
- Enforcing the Rules (procedures to protect against illegal interrogation):
- - The right to legal counsel is recognized in principle but there is often a lot of restriction in terms of access to lawyers.
  - There are rules for medical examinations which prevent unlawful physical interactions between police and the accused.
  - A lot of work is being done by human rights groups and NGOs to provide help for those

Court Procedures

Pre-Trial

Charging Instrument: To be able to charge, the police need to give the relevant information to the Office of the Attorney General, and if they believe there is a prima facie case against the accused, they must frame a charge, which is then presented to the court, and a trial date is requested.xlvi After the charge has been issued, if the prosecutor is not satisfied that there is a prima facie case then they will not charge, and they will instead order further investigation, or close the case.xlvii
Preliminary Hearing: There are no preliminary hearings in the Somalia legal system.xlviii
Pre-Trial Motions: The lack of pre-trial hearings means that pre-trial motions are typically not available in Somalia.

Trial

Nature of the Trial: The nature of the trial depends on the trial - if it falls into the formal system, it is an adversarial trial, with a defense argument, prosecution argument, and ultimate deliberation by a judge or council of judges. The lack of a functioning judicial system means that the trial system differs across the country, with “shadow courts” and Al-Shabaab also having great influence on justice and outcomes of trials.xlix These are not recognized courts but can often be preferred by people as they are easier to access and take less time.
Defendant: Defendants have a constitutional right to be present at their trial, as per Article 35(8). If the accused fails to come, the court may try them in absentia.l Defendants also have the right to bring witnesses and documents summoned during their trials.
Lawyers: The defendant has the right to have a defense lawyer and has a constitutional right for one to be appointed to them if they cannot afford one (Article 35(6)). If the defendant is to plead not guilty or object to something, this must be done through their defense counsel.li
Expert Witnesses: Expert witnesses are permitted to be at trials and can provide evidence for both the defense and the prosecution.
Judges: Regional Court judges and specially appointed District Court judges can summarily try cases. At the opening of the trial, the President of the Court (or the judge) must note that everyone required to be there is there, and then read the charges to the defendant. Once the trial is complete, the judge is responsible for reading the judgment in open court, including both the verdict and the sentence if applicable.
Victims: Victims can participate in trials as civil parties by joining the penal case in order to request their damages This would be done after the defense and prosecution have spoken, but before concluding arguments are presented. Civil participation of the victim is voluntary, and they can only retain one lawyer. There are no specific rules or provisions to protect vulnerable victims or witnesses when giving evidence before the court, but the court can order that the trial be performed behind closed doors for security reasons.

Sentencing Sentences are passed by the judge or by members of the judging college. Sentencing powers are prescribed in law; the judge will follow sentencing guidelines and use a degree of discretion to determine the sentence according to this. It is still possible to be sentenced to death in Somalia for the most serious offenses (e.g. murder and aggravated murder). The president retains the power to pardon sentences under Article 9.

Appeals

Right to Counsel: The process of arranging the appeal hearing is very similar to that of the initial trial – the appellant has a right to counsel and will have counsel appointed if unable to provide their own. An appeal typically has a new panel. Counsel from either party can request a second appeal as a right: Usually, the second appeal should be final, unless there are split judgments, in which case there will be a third appeal.
Ineffective Assistance of Counsel: It is unclear whether you can appeal on the basis of ineffective counsel in Somalia.
Other Grounds for Appeal: The grounds for appeal are not explicitly outlined in the Constitution but are likely similar to those of Britain and Italy due to the impact of colonial rule.
Collateral Remedies: There are some alternative dispute resolution mechanisms in Xeer - negotiation and mediation. If they choose to use negotiation, there is no need for a third party - the two parties will express their own positions and combine them into one agreement. If the parties choose to use mediation, they need a third party to help them negotiate the settlement - the third party is not the one who makes the final decision but helps to mediate it. The outcomes of both negotiation and mediation are non-binding. If they are unsuccessful, the parties can submit to arbitration.

Rights in Prison

Right to Humane Conditions of Confinement: No explicit mention of the right to humane conditions of confinement in the Constitution - could suggest it comes under the fundamental right of the protection of human dignity (Article 10). Has been said that prisoner’s living conditions in Somalia do not meet minimum international and national standards, with most prisons lacking basic infrastructure.lvii Prisons lack proper separation - adults on remand, those sentenced to imprisonment, and children are all kept in the same area so overcrowding can be a problem.

Immigrant’s Rights in Detention: If an immigrant is arrested in Somalia, they have the right to request consular assistance from the Foreign, Commonwealth and Development Office.lviii They have the right to get a translator so that they can understand the language of the court and the proceedings as they are happening. As per Article 35(10)lix

Right to Medical Care in Prison: Articles 30 and 31 of the 1971 Prison Law regulate general access to health care for prisoners and detainees. Article 30 requires the establishment of an “infirmary or proper place for the medical care of prisoners in every prison and other penal institution” Article 31 states that a medical officer, responsible for the health and medical care of every prisoner, “shall be provided in every prison and other penal institution” Health care in Somali prisons typically does not meet the threshold of the minimum standards required.lx

Right to Mental Health Care: There is no explicit right to mental health care in prisons in Somalia, as there is little access to mental health care outside of prisons anyway. Mental illness is very stigmatized, and often thought of as being a result of possession by evil spirits or other spiritual causes - this means a lot of healing is done by religious leaders or traditional healers rather than more contemporary medical treatment, as seen in the Western world.

Restriction of rights: Invertedly, it seems that many prisoners lose access to the fundamental rights they are granted in the Constitution because of the condition of many Somali prisons, due to things like overcrowding, inadequate food and sanitation, and lack of medical care.lxi Many Somali prisons do not have ombudspersons, and federal law doesn’t allow prisoners to make complaints to judicial authorities without censorship. This is not true for Somaliland, which do allow complaints to judicial authorities.

Rights of Special Populations

Women: In the Central Prison, female inmates (both on remand and convicted) are accommodated in a single room in a separate wing of the prison, with female prison officers. Women are housed together with all ages and put in the same accommodation, including children.

LGBT Prisoners: Under Article 409 of the Penal Code, homosexuality can lead to imprisonment from 3 months to three years. In areas where Sharia law is enforced, it can be punishable by death. There does not seem to be any protection in place for LGBT prisoners, particularly as there is no protection for LGBT people outside of prisons in Somalia.

Mentally Ill Prisoners: In Somalia, mental illness is stigmatized, and there are very limited services available, with many families being very reluctant to access them for fear of social judgment. Some families rely on the prison system for containment and respite, even when their sick relative hasn’t committed any crime. This is done mostly because otherwise, most people would have to be “treated” at home, which can be burdensome for families and patients alike. There is also a strong belief in spiritual possession being the cause of mental illness so religious and traditional healers also play a significant role in management. Courts do consider mental health issues in those attending the trial, but there is no mental health legislation to lessen or mitigate charges. Defendants who are found guilty and have mental health problems will be sent to prison rather than hospital, and they will remain untreated in prisons as there is nothing in place for protection. Work with NGOs and charities like the THET (Tropical Health and Education Trust) has offered support and teaching to improve mental health awareness and support in prisons in Somalia.

Juveniles: Currently, the legal framework governing children is outdated and isn’t in line with the Convention on the Rights of the Child and other application international instruments/treaties.
1970 Juvenile Justice Act is the only special provision in the Somali legislative framework that regulates the treatment, administration and detention of children in the justice system.
Under Article 59 of the Penal Code, children under 14 are not criminally responsible.
There are no special provisions for the treatment of children in prison or special regimes for children in detention.
Article 60 of the Penal Code provides that children between the ages of 14 and 18 can be sent to prison if they have been arrested or sentenced for committing a serious offense.
There are no separate specialized young offender’s institutions for children and all children sent to prison go to adult prisons.
The law prescribes a strict separation between adults and juveniles, but children are kept with adults in prisons.
Children in detention or prison do not have access to psychologists or social workers, or any programs that would cater to their educational or vocational needs or prepare them for their release.
There is no probation service or system applicable to children under the present legal framework.