Due Process

Violations of Due Process

Due process is the concept that legal proceedings are conducted in accordance with principles that ensure the fair treatment of individuals through the judicial system. This course of legal proceedings creates a balance between the right to exercise the powers of government and the recognised safeguards in place to protect the individual; this is vital in ensuring that the fundamental human rights of individuals are upheld. It is crucial that the citizens of Somaliland are aware of the laws regulating due process and where to find them.

A primary example of violations of due process in the criminal courts is the government’s use of Security Committees, made up of government officials and security officers, who often usurp the role of the criminal Courts and see hundreds of Somalilanders sent to prison without due process. Another example of violations of due process is the transfer of persons to the custody of another state without regard for due process rights such as judicial supervision, non-refoulment and access to asylum applications. Whilst the Supreme Court has the power to overturn any unconstitutional government actions, yet any history of this is unheard of.

The Code (Legislative Decree No:1 of 1 June 1963), as enacted in 1965, is otherwise known as the Criminal Procedure Code and contains 288 Articles including ones inspired by common law countries, namely the presumption of innocence until proven guilty, the burden of proof, and the rule against unlawful imprisonment (habeas corpus). Whilst there has been little clarity surrounding the Criminal Procedure Code due to the changes made by the Somali Republic military dictatorship, any extreme changes enacted under the dictatorship are considered null and void under the Somaliland National Charter and the Somaliland Constitution. It is clearly stated that only laws enacted prior to 1969 which are not inconsistent with Sharia or individual rights and freedoms are valid in Somaliland until they are replaced with modern laws. However, it should also be noted that the available copy of the Criminal Procedure Code as printed does not reflect the changes made by the Constitution and the new laws of Somaliland. It is highlighted on the Somaliland law website that this will not be updated until later this year; currently, the most relevant information on due process can be found in Section 5 of the National Charter. The withholding of information regarding the applicable rights is a violation of due process in itself and is a very prominent issue in Somaliland today.

It is also essential to note that due process does not only apply to the criminal courts but there is also a Civil Procedure Code (Law No. 19 of 27 July 1974) which details the powers of the judiciary, legal representation, initiating a claim and the following procedures, and any special procedures. This document is available in Somali, Arabic, and Italian and the full version can be found on the Somaliland Law official website.