Wednesday, February 4, 2015

Report on obstacles of justice in somaliland, that i was wrote when i was the judge of regional Court, of Maroodi Jeex Region.





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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