By M. Trunji
Thursday February 9, 2023
The long process leading to the integration
The new Republic of Somalia, born in July 1960, from the union between the two States of Somaliland and Somalia, was defined as “an independent, democratic and unitary Republic” (article 1 of the Constitution) In practice, however, at the beginning,, the only unitary elements were at the top of the state pyramid: there was a single President of the Republic; a National Assembly comprising the former Legislative Assemblies of Somaliland and Somalia; a Cabinet whose members were from the two parties of the territory; and a Supreme Court with jurisdiction over the whole country. The Northern and Southern Courts had been separate, operating under different procedures, applying different laws and using different languages. Before integration, the Indian Penal and Criminal Procedure Codes were in force in the Northern regions and the Italian Penal and Criminal Procedure Codes in the South.
This prompted the Somali government to appoint in October 1960 a permanent Consultative Commission for Integration (Presidential Decree of October 11, 1960 No 1960, Official Bulletin of the Somali Republic, Supplement No. 1to No. 4, 1960). The Commission was composed of Mr. P. Contini, UN Legal Advisor as Chairman, Mr. P. O’Donoghue, previously Attorney-General of Somaliland, Mr. M. Tucci, State Attorney (Avvocato Erariale) of the Somali Government, and Mr. A. Hagi Moussa. Mr. Paolo Contini served as a UN legal Advisor to the Somali Government and, Chairman of the Consultative Commission for Integration from 1960 to1965.
Integration of the Penal and the Criminal Procedure Codes
The Somali Government decided, as a matter of policy, that the continuation of two separate judicial systems would not be consistent with a unitary State. As a result, on January 30, 1962 the National Assembly passed a law delegating to the government the power to draft the following legislations: the Penal Code, the Criminal Procedure Code, the Code of Military Criminal Law in Peace and War, the Code Criminal Procedure in Peace and War and a law on the organization of the judiciary (Law No.5 of January 30, 1962) La legge delega (law delegating legislative authority) directed the government to enact, within six months, the aforesaid laws. This period was later extended to for other ten months. The task of drafting the above-referred laws was given to a Special Commission under the chairmanship of the Minister of Justice and comprising eleven MPs, appointed by the President of the National Assembly, and nine legal experts, including the members of the Integration Commission. “To produce an integrated Penal Code and Criminal Procedure Code within such a short time was a herculean endeavour, especially since all the laws had to be drafted in two languages, English and Italian. In addition to this, all the legal experts who were expected to do the technical work had other responsibilities and non of them in a position to devote full time to this task”, comments Paolo Contini (P. Contini, p, 45)
a) The Penal Code
The Penal Code was horridly prepared by a sub-commission of the Special Commission in about two months and approved by the Commission itself within another two months. The draft was then sent to the Northern regions for comments. Owing to the diffulties encountered by the Northern Judges and police officers in understanding many of its provisions, a working group of three experts, appointed by the Minister of Justice, proposed a number of amendments for the purpose of clarifying and simplifying the text. The Special Commission, however, decided not to consider the proposed amendments and, on December12, 1962, transmitted to the Council of Ministers the text previously approved. The Penal Code was approved by the Council of Ministers on the following day and signed by the President of the Republic three days later (P. Contini p, 46)
Since it would have been obviously impossible to produce ex-novo two original codes within the allotted time, the first question was whether to use the Northern or the Southern approach as guidance. During the preparation of the Penal Code, a view prevailed in favour of the adoption of a penal code along the line of the Italian law. On the other hand, Southern Somali leaders had been impressed with the expeditious handling of criminal cases during the British Administration of the South in the forties, In the light of these factors, the Minister of Justice requested the legal experts to prepare a draft Penal Code on the basis of the Italian Penal Code and a draft of the Criminal Procedure Code based on that of the Northern regions. (P. Contini, 1960, pp, 45-46)
Except the omission of several articles and certain modifications, the Somali Penal Code is virtually a replica of the Italian Penal Code of 1930, commonly referred to as “Codice Rocco”, named after the “Guardasigilli,i,e, the Minister of Justice of the time when the Code was enacted. It may be also recalled that the Somali Penal Code is influenced by the Islamic law. In this regard, mention may be made of two provisions. First, is the prevision prohibiting to drink alcohol beverages, applicable to all Somali citizens and foreign Muslims (Somali Penal Code, article 411 and 412) Secondly, in the case of murder, which is punished with death, except that when the crime is committed by a parent and the victim is subject to his parental authority, the punishment is reduced from death from ten to fifteen years of imprisonment (Somali Penal Code, article 442). The provision appear to reflect the principle of Shafii School of Islam that the law of the retaliation is not applicable to premeditated homicide of a descendent committed by an ascendant, on the ground that the offender’s social status is higher than the victim’s (P. Contini, p, 48 quoting “Manhaj At-Taliban, Manual de Jurisprudence Musulmane selon le Rite Chafi’I, Batavia, 1884, Vol. III, pp, 117-118). b) Code of Criminal Procedure
The Code of Criminal Procedure is greatly influenced by English and Indian law. A notable example is the writ of Habeas corpus, unknown to the former Italian administered territory, which was introduced in the unified criminal procedure by a provision of article 66 of the Criminal Procedure Code, enabling the Supreme Court and the Court of Appeal to order that any person held in arbitrary detention be set in liberty. While the influence of English law is prevalent in the Criminal Procedure Code, some of its provisions derive from the Italian law. For instance, in the course of a criminal proceeding, the injured party (‘parte civile’ in Italian law) may petition the Court for the recovery of civil damages arising from the offence committed. This joinder of civil and criminal proceedings, unknown to common law countries, makes it unnecessary for the injury party to bring a separate civil action and speeds up the judicial settlement of the civil as well as the consequences of the criminal offense.
In order to give Judges, police officers and other officials sufficient time to familiarize themselves with new techniques, the Penal Code, enacted on December, 1962, did not come into force until April 2, 1964; the Code of Criminal Procedure, enacted on June 1, 1963, came into force on March 1965. In the interval several booklets were prepared, in English and Italian, explaining in simple terms, the main provisions of the new codes.
The integration of the Judiciary was accomplished by a law entitles “Organization of the Judiciary”, (Legislative Decree No 3 of June 12, 1962), better known as (Ordinamento Giudiziario)
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