To:
The President of the Republic of Somaliland -Hargaysa-
To:
Somaliland High Judiciary Committee -
Hargeysa –
To:
Ministry of Justice of Somaliland - Hargeysa –
CC: Parliament Sub-committee for
Justice and Law -
Hargaysa-
Objective: Factors that are obstacles to the improvement of
Justice in General, Marodijeeh Regional Court in particular
Your Excellences:-
I, the
undersigned judge atMaroodijeeh Regional Court, hereby submit a brief paper
addressing the pitfalls and problems that are existing within the justice
sector, particularly Maroodijeehin regional court, that are hindrance to proper
implementation of justice at Maroodijeeh Regional Court and if not addressed
promptly, will affect the entire credibility of Somaliland’s Justice Sector.
Your excellences,
I wrote this paper having considered that the Constitution of Somaliland gave all
citizens equal justice under the law regardless of race, clan, constituency, language,
gender, possessions, and individual’s opinion and that I, as judge, have the responsibility
to protect the reputation and credibility of the Judiciary Sector.
I also considered
the criticality of the duties a judge is supposed to perform and the subsequent
accountability by the people and God in relation to the justice I provide. I
also considered the objective behind placing young graduates in the Judiciary
sector in 2011 and 2012 which was to improve the enforcement of the rule of law
and enhance the capacity of nation’s Justice Sector.
Your excellences, as I am confident
that you all care about the importance justice and that you feel people’s
desire for appropriate justice, I am hopeful that you will go through this
paper thoroughly and that you will address the challenges I present here.
Factors and challenges that are obstacle to the solution of the
problems within the Justice System, particularly in Maroodijeeh Regional Court
1. Background
The
President of the Republic of Somaliland H.E. Ahmed Mohamed Silanyo declared in
2011, a year after he was elected, that he is tackling the long complained
injustice and broken systems of country’s justice system as part of fulfilling
commitments the President made during election campaigns. Following the
Presidents declaration, a national conference has been held between 14 and 16
June 2011 at Ambassador Hotel under the title “National Justice and Judiciary
Reform Conference” jointly organized by the Ministry of justice, UNDP and
AWEPA.
Among
the outcome points of the meeting was the engagement of graduate youth to the
judiciary. In October 2011, as part of Government policies implementation, the
Ministry of Justice recruited 40 young people who graduated from the law
universities and provided one-year training on judiciary. In November of the
same year, the Government appointed 10 young law graduates to be judges. On 20
December 2012, 27 of the youth graduates who also completed the one-year
judiciary training have been appointed to be judges.
In
fact, those steps dramatically improved the justice system in the beginning and
produced remarkable results. Nonetheless, the initiative failed in infancy
particularly after the Government diverted its attention to other development
projects. The situation of the judiciary system slipped back to its original
status. Those (judges) who have been the axis of injustice and survived from
dismissal regained their power and influence. As a result, every morning we go
to work, we watch people who suffer from injustice and misconduct and we can’t
do anything about it due to pressure from the judiciary leaders.
Your
excellences, I decided,from today on,to no longer keep silent as injustice
unfolds. I will try to shed some light on the crux of the matter and the main
causes of the widely broken justice that inspired regular criticism on the
justice by the citizens. Following are the key challenges in the Judiciary
branch:
2. Challenges and problems that are
obstacle to the solutions for Justice and Judiciary issues
2.1
Lack
of independence within the Judiciary branch
When you see the words “lack of independence”
you may think that the Judiciary branch is not independent from other
Governmental institutions but this is not the case. As a judge who has handled
many cases, I sincerely acknowledge that the executive branch respects the
independence of judges. They would never go directly to a judge and dictate the
outcome of a certain case. Although the judges are supposed to independently
handle any case that comes to their hands, that is not what is happeningcurrently.
The chairman of the court or your supervisor
would come to you (as a judge) and would directly dictate you or indirectly
indicate the outcome he is expecting upon the conclusion of the case. If you
challenge him or if he just suspects that you may not reach the conclusion he
is seeking, he would contact the party of the case he is in favor of and
instruct them to submit a complaint letter against the judge so that the Chairman
would legitimately transfer the case to another judge who is willing to make
any decision the h may want.
Furthermore, the vast majority of the
complaints from people that leads to the transfer of cases from judge to
another are not in line with the law, specifically Article: 10 X.H.C and
Article 29 X.H.M. Consequently, everyone who wants to unlawfully defeat the other
party of the case just submits a baseless complaint letter against the judge at
a time when the case is about to be concluded in order to buy time and delay the justice.
This behavior (lack of judge independence)
divided the judges of the Court into two groups. Those who follow the
chairman’s illegal orders, whatever they may be, and get their signatures
regularly abused and those who reject but face consequences including
suspension of work and propagandas against their credibility.
This is not a problem that exists only in the
Court I currently work but it is a problem reported by almost all young law
graduates who joined the Judiciary branch in the past two years. In August
2013, they submitted an official letter on this matterwith 27 signatories to the
High Judiciary Committee.
2.2
.Lawyers
who are confidants of Judiciary leaders
There are some lawyers who are close friends of the
chairman of the court and some judges. Their cases are processed quickly at the
courts of all levels. You rarely see those lawyers losing a case due to two
main reasons:
A. Their
cases are often handled by the chairman himself or judges the chairman trust
B. Some
of the judges decide the cases in favor of those lawyers due to fear of having
an issue with the court chairman
Those
lawyers often have more clients than other lawyers, because the lawyers are not
usually recruited based on their competencies but based on recommendations by
chairman of the courts. In some cases, when people observe the norms that exist
in the court, they just go to the lawyer who is known to be close friends of
the court chairman. Because they know that the judge who would handle their
case is likely to decide in the benefit of this lawyer.
Furthermore,
the lawyers that are confidants of the chairman never become loyal to their
clients particularly in the cases that the chairman is backing the other party
of the case. However, as they do not
want to lose their fee, they pretend honesty and they defend their clients’
case deviously.
2.3
A
prosecutor with illegitimate additional powers
The
prosecutor and lawyers should be treated equally in the court but practically
the prosecutor gets additional respect during the court hearings. The
prosecutor enjoys exercising some of the authorities the law gave to the
courts. In some cases, the prosecutor tells the judge to release a suspect on
bail and in other cases the judge would not dare to release a suspect unless
the prosecutor agrees.
2.4
Poor enforcement of law
A.
Criminal
cases
The
law protects the rights of citizens both when they are in detention and when
they are free. However, our judiciary system currently does not protect those
rights. On the contrary, it is the judiciary that lets those rights be
violated. The reasons are:
1.
Article
25 of the Constitution of the Republic of Somaliland guarantees that no one
shall lose his/her freedom unless captured while involved in crime or there is
arrest warrant from an authorized judge. Today, nearly all the suspects that
are brought to the court are being detained illegally and not in line with
Articles 34, 35, 36 and 38 X.H.C, and there is no judge who seems willing to
act based on Article 39 X.H.C.
2. Prisoners who found themselves
in the court are usually humiliated and they don’t get their righted protected.
They appear at the court without having shoes or, in some cases, without
wearing clothes except underpants. In addition, the prisoners often complain
about harassments from escorting soldiers and spending in the prison period
beyond the time the law allows. Some of them reported that they have not been
given food for a day. There is no judge who seems willing to act based on
Article 32 X.H.C.
3. During the prosecution, the
responsibility of the prosecutor is to ensure if the accused person is
committed the alleged crime according to Article 70 X.H.C. But they never do it
and they entirely leave that responsibility to the court.
4. According to Article 26 of
Somaliland Constitution, the accused person shall not be considered as criminal
until the court finds him/her of guilty. But this article is not in application
today. Any prosecuted prisoner is from the beginning considered to be guilty of
a crime. The court just fills the formalities in order to maintain good its
image among public. For example, if you ask some judges if they have sufficient
evidence against the convicted person they would tell you that the accused
person has committed the crime without doubt the evidences could not be found
because of the circumstances in the country. You rarely see a prosecutor
presenting evidence at the court against the person they accused committing of
a crime as per Article 110 and 163 X.H.C.
According to Article 246 X.H.C,
verdicts of criminal cases shall not be executeduntil the case is fully
concluded and the verdict is considered to be final, unless the verdict is to
release the prisoner. The opposite is true in the Courts currently. You rarely
see an accused that is defending himself/herself while not in detention. In the
rare cases where the accused is not yet detained, the court arrests him/her as
soon as the verdict is made without considering the finality of the sentence. On the other hand, if the Court orders the
release of the accused after not finding him/her guilty of crime, he may still
remain in prison a period as long as two years until the Supreme Court approves
the release. The court does not grant the innocent any compensation for the
period he was locked up for a crime he did not commit.
5. Although its forbidden the judge
to coerce the accused person to make a confession of a crime and that the judge
is expected to provide explanations related to potential consequences in case
the accused makes a confession, the court directly encourages the accused to
make a confession so that he will be freed or he will get a sentence that is
less than the one he might get otherwise.
6.
In
the criminal cases, the accused has the right to have a lawyer who can defend
him and the lawyer shall be fined if he does not fulfill his obligations with
regard to the case. However, the accused is often represented by a pretended
lawyer recruited to legitimize the case as the court could not start proceedings
without the presence of a lawyer.
B. Civil cases
Apart from the criminal cases,
there are many problems surrounding civic cases that lead to bad justice in the
courts. Among them are the following:
·
Arrests:
According to Civil Law, no arrests shall be made in relation to a civil
case. You frequently see judges arresting people in relation to civil cases.
Sometimes, prisoners of civil case spend the police station as long as four
months.
·
Rights
for taking the case to court: though the law clearly states who has the right to
take his case to the court, you fequently observe judges accepting cases from
people who have no right to submit their case to the court.
·
Applications
that are not according to civil law: the law clearly explains what the essential contents
that should be included in a civil case application. However, you frequently
see judges accepting applications that are not written according to the
law.
2.5
Some
of the laws are not applied
Somaliland
has developed and passed many laws since it became a country. But the courts do
not apply some of the laws and instead they prefer to apply laws that were
developed by former Somali Democratic Republic. We can pick the following to
examples:
ü
Press
Law ( Xeer- LR-27/2004).
ü
Juvenile
Justice Law Xeer –LR-36/2007).
The
court uses Somalia’s Penal Code for the children that are conflict with the
law. Similarly, the court uses Somalia’s Punishment Law for the journalists
instead of using the Press Law ( Xeer-27/2004) that was developed to protect
the rights of journalists.
2.6
.
Some laws are misused
The
President of Somaliland Ahmed Mohamed Silanyo dismissed the Security Emergency
Committee but the courts use committees that are similar to the Security
Emergency Committee to them to this day. At least once or twice a week, the
Hargeisa Regional Court undertakes a trial case for a group of students that
are accused based on the Security Law (Xeer-LR-51/2012). The reason the police
prefer to use the Security Law is to avoid to proof the crime and to prevent
the suspects to defend themselves. In this case, the courts take sides with the
police and the prosecutors.
The
Security Law is not only used for the students but also for the juvenile street
children who are already suffering as they do not get any care from anyone.
2.7
.
Illegal fines
The
above mentioned subjects either get collective sentence or should have to pay
fine money. This type of verdict has two risks. Some dangerous criminals can
take advantage of it to avoid the punishments they deserve. The second risk is
that innocent youth who are poor may be coerced to pay the fine. Consequently,
the youth may think to commit a crime and pay the fine instead of paying the
fine without committing a crime.
3. Recommendations
Your
excellences, I hereby submit several recommendations that could solve judiciary
problems:
1. First, an independent committee
that monitors the decisions of judges should be established. The committee will
be able to distinguish credible judges from the those who are not
credible.
2. A mechanism that held the judge
accountable should be established
3. The previously launched Justice
Reform plan should be reviewed and evaluated.
4. The Ministry of Justice should
prepare credible and competent lawyers that could defend the accused
5. There should be criteria for the
judges who are qualified enough to handle the criminal cases
6. There should be criteria for the
judges who should handle the cases. Only those who are competent enough should
be allowed to handle the cases at the Court.
7. A prison should be established
for those who have no relatives and at risk of not getting food in the police
stations or police stations should be supported to be able to provide food to
the suspects that have no relatives.
4. Conclusion
Your
excellences,
The
above mentioned misconducts are obstacles to citizens who want to get access to
justice. If not addressed, they can lead the nation to insecurity because
injustice is one of the main causes of instability.
For this reason, I kindly
request you to pay attention to the problems presented in this paper and find
solution for them.
Thanks to Allah
Jamaal Hussein
Ahmed (Mandeela)_____________________
Judge, Maroodijeeh
Regional Court
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