Xaqdoon Law Firm published legal update covering two topics: 1. Legal Pluralism: Complementarity or competition; and 2. Death Penalty in the Somali Penal Code. Xaqdoon Law Firm updates are intended to contribute to the legal development in Somaliland and Somalia. The aim is to highlight areas that need attention and provide recommendations as part of the Firm’s commitment towards development, rule of law, constitutionalism and human rights. Also, we carry out researches and legal analysis for our clients including government institutions, international and national NGOs and companies.
The Republic of Somaliland has a constitution that delegates the law-making powers to a bicameral Parliament. The law-making powers are vested with the Parliament and “the power to legislate cannot be transferred to anyone outside the Parliament (article 38). The constitution created a judiciary system tasked to “adjudicate on proceedings between the Government and the public and between the various members of the public (article 97). Since 1993, the first time a charter was formulated in Borama Conference, numerous laws have been passed by the Parliament.
The judiciary and justice institutions are concentrated in urban areas with little or no presence in rural and nomadic communities. The customary system is prevalent in these areas. But also, it used in urban settings for both civil and criminal cases. The customary system fills the vacuum in places where justice institutions are not present.
Arguably in an increasing rate, a Sharia Law based offices serve as alternative dispute resolution (ADR) mechanism in urban places, particularly in Hargeisa. The Sharia-based ADR offices do not exist in rural and nomadic areas. Their usage is relatively new, and accessible for town people who can pay fees.
With this pluralistic system, there is no legal framework governing the relationships of the three systems. This legal lacuna raises many questions and often complicates the process where there are incidents of overlap, forum fishing and challenges in the enforcement of decisions.
Attached is the full report.
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