PUBLIC ORDER LAW IN SOMALILAND: LEARNING THE LESSONS OF DEMOCRACY
Ibrahim Hashi Jama LL.B, LL.M
(The views expressed in this article are mine and not of the
Somaliland Forum, whose Constitution & Law Committee I chair. The Forum has called publicly for the
abolition of Somaliland Security Committees.
I am indebted to Hodan Hassan of Nairobi for tracking down a copy of the
1963 Public Order Law.)
“Because people (or a section thereof) may
hold their government in contempt does not mean that a situation exists which
constitutes a danger to the security of the State or to the maintenance of
public order. In fact, to stifle just criticism could as likely lead to these
undesirable situations.” - Per Mr
Justice Levy in Free Press of Namibia Pty Ltd v Cabinet for the
Interim Government of South West Africa, 1987 (1) SA 614, 624E
Introduction
The Republic of
Somaliland[1],
though as yet unrecognised, has succeeded, against all odds, in building a
democratic peaceful state in a continent in which such states do not exist in
abundance. Yet, thirteen years after
the decades of dictatorship, Somaliland’s public authorities and officials are
still grappling with the necessary cultural change that, in a democracy, public
authorities are there to serve the citizens and not the other way round, and
that the Constitutional rights and freedoms of citizens are not granted by the
public authorities, but it is the citizens who grant limited powers to their
public authorities. It is a quantum leap
that any society which emerges out of dictatorship has to make. This issue is starkly illustrated in the
use, or sometimes, abuse of public order laws.
Over the last few years, there has seen considerable interest in the
activities of the Somaliland Regional Security Committees which exercise extra
judicial powers by detaining and sentencing to imprisonment persons who are
accused of committing public order offences, and in the Government’s use of
ministerial decrees to ban demonstrations and public gatherings. There has also been a general concern that
the current Somaliland government is increasingly becoming heavy handed in its
treatment of citizens exercising their rights and freedoms, when, after the
emergence of political parties and the first nation-wide local and presidential
elections, there was an understandable expectation that robust debates and
public meetings about the all aspects of Somaliland life will become the
norm.
It is becoming clear,
however, that the Government’s (or at least some ministers’) understanding of
its role and powers, as well as its assessment of the current state of affairs
in Somaliland, is distinctly different from that of the opposition parties, and
that of civil society organisations.
The situation is compounded by the total lack of clarity about which
laws, if any, govern, or for that matter are relied upon by Government, when
drastic actions which curtail civil liberties are taken by either the Minister
of Internal Affairs or his regional representatives, the Governors[2]. It used to be said in seventeenth century
England “equity varies with the Lord
Chancellors foot[3]”,
and in Somaliland, we are now increasingly finding that the rights and freedoms
of citizens are circumscribed by boundaries set by the Minister of Internal
Affairs. Yet the Somaliland Bill of
Rights is as extensive and clear[4],
but in public order issues, the devil is in the detail and when old laws are
relied on selectively, Somalilanders’ visceral loathing of any acts or decrees
by the government that may be seen as reviving the dark days of the Somalian
dictatorship comes to the forefront.
Sadly, because of lack of recognition, Somaliland lacks the resources
needed for wholesale revision of old laws and codification of news laws, which
are much more in line with modern human rights law. This article examines how Somaliland’s march
to democracy is being undermined by the problem of defining the legitimate
limits of some of the rights and freedoms enshrined in the Constitution and
what laws or practices, in fact, govern such limits, specially in situations,
such as public assembly, which raise possible public order issues. I examine the 1963 Public Order Law, which
is often said to be the law the public authorities are still relying on and the
operation and legality of the Somaliland Security Committees and conclude that
the latter have nothing to do with the former and are unconstitutional. I also recommend,
among other things, that the Security Committees be abolished forthwith and
that a new modern public order law (which could be based largely on the 1963 Law) be promulgated.
The Somaliland Constitution declares the fundamental rights of individuals in the 16 Articles in Chapter One, Part 3, headed “Human Rights, Fundamental Freedoms and the Duties of the Citizen”, which, together with Article 8, are effectively Somaliland’s Bill of Rights. The Constitution is the supreme law of the land and any law inconsistent with it is not valid (Article 128(1)). Also, in the context of fundamental rights and freedoms, the Constitution (Article 131(5) confirms that pre-1991 Somalian laws which are still subsisting in Somaliland will not be valid if they conflict with “individual rights and fundamental freedoms”. Article 21 of the Constitution re-emphasises that all the branches of the state (the legislative, executive, as well the judiciary) and the local government of the regions and the districts of the Republic of Somaliland, of all levels, shall be bound by the provisions of the Constitution (Part III) which set out the fundamental rights and freedoms of individuals.
I shall highlight some of the constitutional rights which are broadly relevant to public order issues. Article 25 of the Constitution, for example, guarantees individual liberty and states that:
“1. No person shall be deprived of his liberty except in accordance with the law.
2. No person may be arrested, searched, or
detained, except in the case of flagranto delicto, or on the issue of a reasoned arrest warrant by a competent
judge.
3. The
state shall guarantee to all citizens the rights and freedoms and the
punishment for any of their infringements shall be determined by law.”
The Constitution also confirms that an accused person is innocent until proven guilty (Article 26(3)), and declares that every one has the right to defend himself in a court (Article 28(2)). As for the rights of those who have been detained, the Constitution, says, among other things, the following:
“Article
27: The Rights of Persons Deprived of their Liberty
1. Any person
who is deprived of his liberty has a right to meet as soon as possible his
legal representative, relatives or any other persons he asks for.
2. Any person
who is deprived of his liberty because of alleged criminal offences shall have
the right to be brought before a court within 48 (forty eight) hours of his arrest.
3. ………..
4. ………..
5. The law
shall lay down the maximum period in which a person can be detained in custody
pending investigations.
6. Any accused
person who is convicted by a court shall have the right to appeal to a higher
court.
7. When a
person is detained in custody or his detention is extended, he shall have the
right to have his status communicated to any person he so chooses.
8. ……….
9. The
punishment for the infringement of Clauses 1 to 7 of this Article shall be
determined by law.”
Of particular
relevance to public order (and to public meetings and processions) are those
constitutional provisions relating to freedom of association, freedom of
expression and freedom of assembly:
2.
All citizens shall have the right to form, in accordance with the law,
political, educational, cultural, social, and occupational or employees’
associations.
1. Associations
with objectives, which are contrary to the public interest or are secret or are
military in nature or armed or are otherwise against the law, whatever their
outward appearance might be, are prohibited.”
The Somaliland Constitution is also very clear in linking the rights of freedoms guaranteed under it to international norms and standards. Besides Article 10, which confirms the Republic’s adherence to the UN Charter and international law, and, in particular, to the 1948 Universal Declaration of Human rights, Article 21 of the Constitution is much more explicit and states that the fundamental rights and freedoms set out in the Constitution “shall be interpreted in a manner consistent with the international conventions on human rights and international laws”. I list in Appendix 4, as an example, the range of relevant international norms relating to freedom of assembly – similar lists can be compiled for other rights, such as freedom of expression.
Limits of fundamental rights
Public order issues often raise questions as to which circumstances may justify limitations on the exercise of fundamental rights which are guaranteed by the Constitution - the supreme law of the land[5]. Article 25(4)[6] of the Constitution states that “the freedoms of the person shall not override the laws protecting the national interest, the security of the country or the rights of other individuals” but the extent of this derogation is limited severely by international law. For a start, there are some rights which, under international law, cannot be limited[7]. Therefore, the restrictions set out in Article 25(4) will not apply to this category of rights, which, on the whole, do not arise in public order situations.
But even if the rights are those in which some derogation may be permissible, the limits of the derogation are circumscribed by international law. On the issue of freedom of expression, for example. Article 19(3) of the ICCPR states that any restrictions shall “only be such as provided by law and are necessary:
(a) For respect of the
rights or reputations of others; or
(b) For the protection of national security or of
public order (ordre public), or of public health or morals.”
The formula for the extent of limitations in the
African Charter of on Human and Peoples’ Rights (ACHPR) 1981 is similar and, for example, in Article 11, the
right to assemble freely with others “shall be subject only to necessary
restrictions provided for by law in particular those enacted in the
interest of national security, the safety, health, ethics and rights and
freedoms of others.”
Therefore, any restrictions must meet a strict
three-part test. Firstly, they must be
provided for by law, in the sense that the law is accessible and formulated
with sufficient precision to enable the citizen to regulate his conduct. Secondly , the restrictions must pursue one
of the exclusive legitimate aims found in, for example, Article 19(3) of the or Article 11 of the ACHPR or the
other similar provisions. Thirdly, any
restriction must be necessary to secure the legitimate aim. In general, the restrictions must serve a
pressing social need, the reasons given to justify them must be relevant and
sufficient and they must be proportionate to the legitimate aim pursued. International human rights law and national
laws[8]
make it clear that this test is to be applied strictly.
In a succinct summary
of “the jurisprudence and views of eminent commentators”, Toby Mandel[9],
of Article 19, concludes that public order or security restrictions on freedom
of expression may be legitimate only where the following conditions are met:
“1. The
risk of harm must be high, not remote or conjectural.
2.
The risk must be of imminent harm, not a distant
occurrence to which many factors might contribute.
3.
The risk of harm must flow directly from the
expression. It is not legitimate to restrict expression where the risk already
exists, either because of tense underlying social circumstances or because the
information is already available. In other words, it is not legitimate to
prohibit expression which does not directly incite disorder or violence.
4.
The risk must be of serious harm, that is to say
violence or other unlawful action; minor or insignificant harm cannot justify
restrictions on a fundamental right.
5.
Some sort of intention must be present, at least
where criminal sanctions are to be applied. While it may be legitimate to
interrupt a public speech which is the equivalent of a "spark in a powder
keg", the speaker may only be subject to sanction where he or she intended
to ignite the powder.”
Similar considerations apply to limitation on
freedom of assembly[10]
, which, together with freedom of expression are often the two main issues that
arise in public order situations. The right of assembly covers all types of
gathering including assemblies and meetings, demonstrations, marches and
processions, whether public or private provided they are “peaceful”. Where organisers
or participants have shown violent intentions likely to result in violence or
disorder, the right may be limited, but incidental or sporadic violence or
criminal acts committed by others in an assembly or violent response of
counter-demonstrators to an otherwise peaceful assembly ought to not
necessarily lead to a denial of the right of assembly. States are of course permitted to limit the
right so long as the tests above are
met, and in this area the main issue is likely to be whether the limitation is
prescribed in law and is necessary, in a democratic society, in the interests of
national security or public safety or for the prevention of disorder or
crime. The right of assembly may be
regulated, by, for example, a regime of prior authorisation
of peaceful assemblies, but this system and the way it is applied, in practice,
must not affect the right of assembly, as such.
Furthermore, it is incumbent on the state itself to secure the
conditions that would permit the exercise of the freedom of assembly and this
may involve positive measures to be taken to enable lawful demonstrations to
proceed peacefully. The state must act in a manner calculated to allow the
exercise of the freedom, and must always strike a fair balance between the
interests of those seeking to exercise the right of assembly and the general
interests of the rest of the community.
Resorting to bans and refusal of permission to assemble simply because
there may be fears of disorder will amount to a denial of the right if no
attempts are made by the state to consider steps of preventing the disorder,
such visible police presence, which would enable the assembly to take place
peacefully.
Even, at the times of
emergencies, there are still strict limits on the extent of derogation of
rights. For example, Article 4 of the International
Covenant on Civil and Political Rights (ICCPR) makes any derogation from such rights
conditional upon the existence of a “public emergency which threatens the
life of the nation and the existence of which is officially proclaimed”,
and that states may only take measures “to the extent strictly required by
the exigencies of the situation, provided that such measures are not
inconsistent with their obligations under international law ”[11].
Internal conflict and unrest that do
not constitute a grave and imminent threat to the life of the nation cannot
justify derogations under Article 4 of the ICCPR[12]
, and the threat, which might justify such derogation, has been described as
one which is “of exceptional and actual or imminent danger which threatens the
life of the nation”. A threat to the
life of the nation is one that:
“(a)
affects the whole of the population and either the whole or part of the
territory of the State, and
(b)
threatens the physical integrity of the population, the political independence
or the territorial integrity of the State or the existence or basic functioning
of institutions indispensable to ensure and protect the rights recognised in
the Covenant.”[13]
Somaliland
presidential emergency powers
Constitutions of states that have come out of dictatorships or
conflict include clear limits on the Executive’s power in emergency situations,
and it has become a matter of standard constitutional
drafting practice to regulate in constitutions the procedures for declaration
of states of emergency[14]
and the protection of human rights during such periods. In Somaliland, the declaration of war and
resolutions relating to emergency laws can only be passed at joint sittings of
both Houses of Parliament[15].
So
far as emergency situations are concerned, the procedures for issue of
emergency decree-laws are set out in Article 92 of the Somaliland Constitution:
“Article
92: Other Powers of the President Relating to Emergency Laws
1. In the
event of the emergence of special circumstances which endanger the security of
the country, jeopardise law and order, create upsets in the general stability
or in the confidence in the economy, the President shall issue emergency laws
which are aimed at combating such special circumstances as set out above. If the two Houses are in session when the
emergency laws are issued by the President, he shall present the laws to them
within seven (7) days so that they can make their own resolutions. If, on other hand, the two Houses are not in
session, the Speakers shall call an extra-ordinary meeting within 14 days. The
Government shall implement the emergency laws until such time the two Houses
have made their own resolutions.
2. Emergency
laws shall have the same effect as legislation passed by the House of
Representatives or the House of Elders, and shall come into force on their
signature by the President.
3. Emergency laws shall be reviewed once every
three (3) months by the two Houses whose resolutions shall be passed by a
simple majority vote.”
It is
no accident that the Somaliland Constitution contains such strict control of
presidential law-making through emergency powers[16]. Somalilanders have learnt the lessons of a
dictator ruling by decree and have opted for this clear oversight and control
of any powers the President may wish to assume even in times of dire emergency. Although such emergency decree-laws can be
implemented before the Houses reach a decision on them, they must be put to the
Houses within the set time limits of 7 to 14 days for endorsement. If they are not presented to the two Houses
or the two Houses reject them, then the decree-laws will no longer be
valid. The Somaliland Constitution does
not allow for any other draft laws, whatsoever, to be implemented[17]
in the country unless they have been passed by both Houses and signed into law
by the President as set out in Article 74 to 78 of the Constitution.
With the exception of a declaration of a state of emergency covering the Somaliland region of Sool, which was invaded by forces of neighbouring Somalian warlord, Col Abdullahi Yusuf, in 2003, no other emergency legislation relating to public order has been promulgated by the Somaliland government and endorsed (or later reviewed) by the Houses of Parliament in line with Article 92 during the last few years. In August 2000, however, the then Minister of Internal Affairs declared that the President issued a emergency decree[18] (No 20 of 2000) during the Somalian 13th Peace Conference in neighbouring Djibouti, but as the Constitution required such an emergency to be confirmed and extended every 3 months by both Houses of Parliament, this decree-law did not last long. It has often been contended, though, that the government continued to use the emergency decree for a long time afterwards and this formed one of the articles of impeachment[19] of the late President Egal in July 2001 when he was threatened with impeachment by 38 members of the House of Representatives.
Somaliland Public Order Legislation
The
maintenance of the public order is, of course, one of the principal duties of
any government, and, in Somaliland, the maintenance of peace is expressly
mentioned as one of the duties of the President in Article 90 of the
Constitution. Also,
the Regions and Districts Law[20] states that securing the
general peace of the Regions of the Republic of Somaliland is the function of
the central government and the Ministry of Internal Affairs is the main public
authority that deals with public order issues. Indeed under Article 2 of the 1993 Law on the
Structure of the Ministry of Internal Affairs and the Administration of the
Regions & Districts, the first of the ten functions of the Ministry is the
maintenance of peace and order inside the country. The Ministry controls the police, oversees
and directs[21]
the activities of the local authorities and deals with the traditional
leaders. Strengthening peace and
security[22]
is also a statutory duty of the six Regional Councils which are headed by the
Government appointed Governors, but all local authorities have a duty under
Article 112 of the Constitution to protect internal security.
Somaliland is slowly replacing some of the pre-1991 laws so as to make them in accord with the Somaliland Constitution. But as Somalilanders were aware that such a revision of the old laws and codes may take time, they took a pragmatic view[23] and declared in the Constitution (Article 130(5)) that:
“All the laws which were current and which did not conflict with the Islamic Sharia, individual rights and fundamental freedoms shall remain in force in the country of the Republic of Somaliland until the promulgation of laws which are in accord with the Constitution of the Republic of Somaliland. At the same time, laws which conform to the Constitution shall be prepared, and each such law shall be presented within minimum time scales set by the House.”
Nonetheless, this
clause, which was meant to avoid the creation of a legal vacuum, has caused
considerable uncertainty, as, without court pronouncements, it is never clear
as to which pre-1991 Somalian law is still in force. The test appears to be
thus: Is the particular law or provision
in conflict with the principles of Islamic Sharia[24]
or with fundamental rights and freedoms?
Somalilanders continue to use, for example, the main codes which were introduced
during the first years of the union with Somalia and before the onset of the
dictatorship. These codes, which were
mainly produced by a Consultative Commission for legislation[25],
include the Penal Code[26]
(which was based on Italian Law and superseded the Indian Penal Code in
Somaliland) and the Criminal Procedure Code[27]
(based on Somaliland law). The
expectation was that even though human rights practices have progressed since
then, the pre-1969 laws were, at least, passed against the test of the
fundamental rights and freedoms set out in the 1960 Somali Republic
Constitution which contained a bill of rights extending from Article 16 to
37. The long dictatorship era was a
different case, altogether, and the laws passed during that period have to be
judged in accordance with the test under Article 130(5) of the Somaliland
Constitution almost on a one to one basis, bar for the swathe of security
legislation which ought to be swept away immediately. But here is the nub of the problem –
although a new non-statutory committee has been set up under the auspices of
the current Vice-President to review the laws, no statutory commission to
review the old laws has been set up under the law and hence it is left
primarily to the Government, which has the only resources available, to define
selectively which laws are current and which are not.
The Penal Code, which
consists of a total of 565 Articles, includes both crimes[28]
and contraventions against public order.
The crimes unusually carry fines and imprisonment of one to 5 years and
the contraventions fines and/or prison for up to one year. The crimes against public order are covered
in Articles 320 to 328 and are:
Contraventions against
public order and public tranquillity are covered in Article 505 to 523 and are:
Among the other legislation passed in the early 1960s was the Public Order Law (Law No 21 of 26 August 1963). This Law, which consists of 78 Articles, sets out the functions and powers of public authorities, in particular in emergency situations, and also covers provisions relating to public meetings and processions, public entertainment, and public safety. It should be noted that this Law was linked to the 1963 Penal Code and that, in any case, it was in line with the then 1960 Somali Republic Constitution. The reach and interpretation of human rights law has since been extended over the last 50 years, but the fact that successive Somaliland governments which did not want to be seen as applying draconian Siyad Barre Dictatorship decrees have prayed in aid the 1963 Public Order Law when justifying extra-judicial decisions or blanket bans of demonstrations has lead to a wholesale criticism of this Law and an unprecedented resolution[29] by the Somaliland House of Representatives which declared the whole Law as unconstitutional (see appendix one and the comments of then Chair of the House of Representatives’ Constitution, Justice and Laws Committee, and now Chairman of the Supreme Court, Chief Justice Feysal Haji Jama in Appendix 2). Before looking at how this unfortunate situation arose, I shall examine in detail the provisions of the 1963 Public Order Law.
The Law (Article 1), lays down a general duty on public order authorities to ensure the maintenance of public order and safety; provide, in accordance with the law, for the prevention and suppression of crimes; give assistance in cases of accidents and cooperate with each other. They may also, at the request of specific parties, promote the amicable settlement of private controversies. This latter discretionary alternative dispute resolution function[30] is important in Somaliland, because it buttresses the peaceful settlement of disputes, which is undertaken by the communities and traditional leaders[31] themselves, with the public authorities, when called upon by the parties, facilitating and enforcing the settlement.
The public order authorities are defined in the Law[32] as being:
1. The Minister of Internal Affairs who under, this Article has control of “the central command of the police force”.
2. Regional Governors, who, within the limits of the law, control the “regional commands of the police”.
3. District Commissioners and Heads of Sub-districts, who, within the limits of the law, in turn, control the police commands within their respective areas. Under the Regions & Districts Law (2002), districts are now headed by elected Mayors and sub-districts or villages have councils selected by the elders and other prominent persons and approved by the elected District Councils[33].
4. In the case of absence of the Heads of the District or the sub-district, the officer in charge of the police in the area shall exercise provisionally the functions of the public order authority. This is, however, now superseded by Article 18 of the Regions & Districts Law, under which the functions of Mayors are taken over by elected deputies, in their absence.
5. Regional Governors and District Mayors may request, through the Ministry of Internal Affairs, the intervention of the army and other para-military state forces. In cases of urgent necessity, such intervention may be sought with the prior agreement of the commanding officer of the police.
The powers of the public order
authorities
Pubic order authorities shall, within the limits of the law[34], take any necessary or appropriate measures, which are immediately enforceable[35], in the performance of the duties they are charged with under this Law. This limitation is important because it signifies that the Constitution and other laws limit the extent and range of actions that the authorities may take. Secondly, whatever they do must be shown to be necessary for the discharge of their functions. Thirdly the measures taken must be appropriate and hence must be proportionate. One can note immediately, these limitations on what measures a public authority might take are similar to those in which any acts which may be derogations[36] from the rights of individuals will be judged – i.e legality, necessity, appropriateness and proportionality.
The other powers given to public order authorities under this Law are to grant authorisations to specific persons[37] or organisations for a period of up to one year. These authorisations (which are usually in the form of a licence) are usually granted to a specific person and are not transferable (Article 5). Such authorisation will not, however, be given to a person who has been sentenced to imprisonment for not less than one year for a crime not committed with culpa[38] or where the person is subject to a security measure[39] or is declared a habitual or professional offender[40]. Authorisations may be suspended or revoked when the authorised persons fail to comply with the conditions of the grant of authorisations (Article 7).
Any person may submit an appeal “through the proper channel[41]” against any decision of a public authority which has not become final, within a period of thirty days from the date of notification of the decision. When the decision becomes final, a person may still appeal to the Supreme Court, which has exclusive jurisdiction[42] for dealing with administrative law suits against the final decisions of public bodies.
In cases of urgent necessity, public order authorities may enter the premises of anyone who is carrying activities authorised by the public authorities. Any person who has been summoned in writing by a public order authority in connection with the authority’s public order functions under Article 1 of this Law is obliged to attend any meetings (Article 11). There is also the general provision under Article 505 of the Penal Code which makes it an offence for anyone to fail to observe an order lawfully given by a public authority “in the interests of justice, public security, public order, or hygiene”.
Unusually, Article 12 of this Law gives an officer in charge of a police station a wide discretion to:
1. “… take finger-prints of any person against whom criminal proceedings have been instituted or of any person whose antecedents are to be enquired into for any reason whatsoever.
2. He may also by photograph or measurements, record the distinguishing marks of any person who has been sentenced to imprisonment for a crime for a term exceeding three years, or who has been declared to be a habitual offender[43], or who cannot or refuses to prove his personal identity.”
Under Article 50 of the Criminal Procedure Code, there is an obligation on any person against whom a summons to appear has been issued, to provide full personal details of himself, if so required by a police officer. Also a police officer may arrest without a warrant any person who, having been lawfully requested to provide his personal details refuses to do so or provides false details, but such a person must be released as soon as the correct personal details are known - otherwise the person must be brought to a court within 48 hours.
Where a public order authority is informed that unless restrained, a person is likely to commit a breach of the peace, the authority may inform the person in writing that he “should execute a bond for good conduct or be subjected to police surveillance” (Article 66) . A copy of the communication, together with a detailed report shall be forwarded without delay to the local Regional Court. The Regional Court, after hearing the Attorney General and the person concerned, and taking any relevant evidence in line with the Criminal Procedure Code, may order that a bond be executed and shall state the nature, amount (which shall be between 1,000/- to 50,000/- ) and duration (no more than a year) of the bond. If the person is destitute, he shall be subjected to police surveillance[44], instead. An appeal shall lie against the order to the Court of Appeal. If the person subject to the security measure does not commit an offence punishable with imprisonment during the period of the bond (or surveillance), then the Court shall order the release of the deposit (bond or surety) or end the surveillance.
Another preventative measure, specially in rural area, is the sequestration of animals or other property belonging to those who are presumably liable for compensation in situations where “following the commission of or the attempt to commit a crime against the life or safety of a person, there is sufficient reason to believe that acts of retaliation or vengeance will be committed by a person or a group of persons[45], or that a serious breach of the peace or disturbance to the public tranquillity will occur” (Article 69). In such a case, the public order authority must give full reasons, and shall, without delay, notify the competent Court of the measures taken and when the reasons for the sequestration cease to exist, the authority may order the restitution of the animals or property. The Law also gives to the Regional Court similar powers to order sequestration of property during criminal proceedings, on the application of the Attorney General or of any of the parties in the proceedings.
State of emergency/war
Article 70(1) of the Law declares that a state of emergency may be “proclaimed in case of a serious disturbance of public order, or serious public calamity, or danger of serious disorders”. The Law states that a state of emergency shall be proclaimed by “decree of the President of the Republic on the proposal of the Minister of Internal Affairs and having heard the Council of Ministers”. The decree shall then be submitted to the “National Assembly” on the same date for approval. These procedures for proclamation of state of emergency[46] in the 1960s are no longer applicable to Somaliland and the Somaliland Constitution lays down that the two Houses of Parliament may declare a state of emergency or war and the President’s powers during the emergency situations are set out in Article 92 (see above). It should be noted, however, that the 1960 Somali Republic Constitution included Article 17 which guaranteed personal liberty and confirmed that “no persons shall be liable to any form of detention or other restriction of personal liberty, except when apprehended in flagrante delicto or pursuant to an act of the competent judicial authority…” contained a limited derogation from such a fundamental right in emergency situations. This derogation, which is not found in the Somaliland Constitution, stated that:
“(4) In
cases of urgent necessity, expressly defined by law, the competent
administrative authority may adopt provisional measures which shall
be communicated without delay to the competent judicial authority and confirmed
by it within the time and in the manner prescribed by law, failing which such
measures shall be deemed to have been revoked and shall be void.
(5) In each case of detention or other restriction of personal liberty, the reasons for the measure shall be communicated to the person concerned without delay.
(6) No person shall be subjected to security measures except in cases and in the manner prescribed by law and pursuant to an act of the competent authority, stating the grounds thereof.”
Any powers given to public order
authorities were, therefore, to be exercised within these limits set by Article
17 of the Constitution. The scheme, set
for dealing with emergencies in the Public Order Law 1963, therefore, started with the legal proclamation of the state of
emergency (or war[47]) and then, under Article
71 of the Law, the Minister of Internal Affairs, or the Regional Governors
(with the authorisation of the Minister) had powers to issue Regulations, which
provided, provisionally[48],
for:
“a) such restrictions on the freedom of movement, association, propaganda, strike, as may be necessary to prevent disturbance of public order, public calamity, or danger of disorders;
b) the arrest, the search of person or premises, of persons suspected of a crime or activities contrary to public order and security;
c) the requisition of property or services, against equitable and timely compensation, where such requisition is necessary to prevent public calamity or succour a population in distress, or ensure the essential public services;
d) the suspension or revocation of authorisations or licences to keep or carry arms, or weapons normally used for offensive purposes;
e) Conferring upon civil or military authorities powers which are different from those ordinarily vested in them.”
The Police, or, in the case of more serious emergency, the military may be empowered to enforce the above measures. Any person who contravenes the provisions of the Ministerial Regulations, shall be punished, where the act does not constitute a more serious offence, with arrest for a contravention[49] up to one year in prison or a fine of up to 10,000/-[50].
All these provisional measures were subject to the conditions in Article 17 of the 1960 Somali Republic Constitution (see above), to the effect that the measures must be reported, without delay to the relevant Court, and if the Court did not confirm them, the measures would be revoked. Also where such a measure involved restriction of a person’s liberty, there was the additional obligation on the public order authority to give reasons to the person concerned, presumably so as to facilitate that person’s right to seek a remedy through the appropriate court.
Additionally, even in such emergency, the Law itself (Article 72) lays down limits on the exercise of those powers which restrict the rights of individuals, as follows:
1. All measures concerning the arrest or search of persons or premises taken under the Regulations issued by the Minister of Internal Affairs or his Regional Governors in line with Article 71 of this Law, must be “promptly notified to the competent Court for confirmation within thirty from such notification” .
2. Except for cases where criminal proceedings have been started already, the arrest of persons suspected of activities contrary to the public order and security may be confirmed by the Regional Court “for such period as is necessary to prevent the danger of disorders provided that such period shall not exceed 90 days”.
3. If the Regional Court confirms the arrest or search, an appeal shall lie to the Supreme Court directly and shall leapfrog the Court of Appeal.
Public meetings, functions and
processions
One of the major subjects which any public order law has to tackle is the regulation of public demonstrations or events. In this respect, the Public Order Law includes Part II (Chapter I) (Articles 13 to 20) which applies to both “public meetings” and “processions in public streets” - the latter appears to cover demonstrations. Unlike the Somaliland Constitution Bill of Rights which has a general exception clause[51] (Article 25(4)), the 1960 Somali Constitution included a specific limitation (Article 25(2)) on the right of assembly which stated that “the law may impose that previous notice of public meetings be given to the authorities. Meetings may be forbidden only for reasons of public health, safety, morality, order or security” . The relevant provisions in the Public Order Law relating to this area are as follows:
1. The promoters of a meeting in a public place or in a place open to the public shall give notice to the District Mayor[52] at least three days in advance of the meeting.
3. Even if convened privately, a meeting shall be deemed to be a public one if it assumes the characteristics of being a public meeting because of the locality where it is held or the number of persons which attended it or its purpose or objective[53].
4. Meetings held by associations or political parties[54] shall be deemed to be private meetings unless the meetings have the character of regional or national meetings or congress.
5. The District Mayor may prohibit or suspend a public meeting or make it subject to special conditions as to time and place “for reasons of public health, safety, morality, order or security” by a written order which shall state the reasons for the decision. He must then give immediate notice to the Regional Governor. This refusal amounts to a decision of a public order authority and can be appealed against in line with Article 9 of the Law. If the decision is not final, it can be appealed against within 30 days of the notification of the decision to the “proper channels”, which, in this case will be Regional Governor/Minister of Internal Affairs, and then when it becomes final to the Supreme Court. Often though these decisions may have to be made and contested within a few days.
6. As for religious functions held in open places and funerals, there is no need to give any notice to the Mayor.
7. In public meetings, no one, including persons authorised to hold arms under an authorisation (licence) issued by a public 0rder authority, shall carry arms[55].
8. The Mayor may, by order stating the reasons thereof, prohibit the wearing of clothes or badges, or exhibition of flags or emblems in a public place, if. in his opinion, these may disturb public order[56].
9. A public meeting may be dissolved if the promoters fail to give prior notice of the meeting; or a private meeting becomes a public one (see above); or an offence is committed during the meeting; or “seditious[57] manifestations occur or seditious shoutings are uttered which may in any manner disturb public order or safety” (Article 16). Article 509 of the Penal Code covers “seditious manifestations or cries” in public meetings and lays down a punishment of imprisonment for up to one year, unless the act constitutes a more serious offence. Participating in a seditious assembly of 10 or more persons is also a crime under the Penal Code (Article 510) which carries imprisonment of up to one year, but any participant who leaves the assembly before or in compliance with an order given by a public authority shall not be punishable.
10. Any contravention of these provisions relating to meetings and processions shall be punished, where the act does not constitute a more serious offence, with imprisonment for a contravention of up to three months or a fine of up to 750/-.
Public meetings and processions during elections in Somaliland are now covered by Article 29 of the Presidential & District Councils Elections Law (Law No: 20 of 2001) which states as follows:
“Article
29: The Holding of Meetings and Demonstrations
6.
Persons
organising meetings and demonstrations relating to the election campaign shall inform
in writing the Chairman of the District and the relevant police station 48
hours before the event. The Chairman of
the District[58]
may ban the holding of such meetings or demonstrations if he is satisfied that
they might damage the health, morals or general peace etc, and it is incumbent
on him to order that the meetings or demonstration may be held at places and
times set by him.
7.
No more
than two meetings or demonstrations can be held in a town or village in any one
day.”
It is likely that the same provision will apply to parliamentary elections.
Control and licensing
of arms and dangerous substances
Part II, Chapter II of the Public Order Law (Article 21 to 34) deals with the manufacturing, importing and licensing arms[59]. The manufacture, collection or trade in arms without authorisation from the Ministry of Internal Affairs in connection with firearms and explosives or from the District Mayor in connection with pointed or edged weapons. The Law also lays down controls on registration, transportation and sale of arms. Licences (on payment of fees) to keep and carry firearms (limited to non-automatic rifles and pistols) may be issued by the Regional Governors. Any such firearms which are not covered by an authorisation shall be forfeited (Article 34(2)). For reasons of public order and security, public order authorities may order that arms, including those held on licence, be temporarily surrendered (Article 30).
Part II, Chapters III
and IV deal with the prevention of accidents and disasters and the control of
public nuisance. The manufacture,
deposit, trade in and transport of explosives, poisonous or dangerous
substances are prohibited unless authorised by the Minister of Internal Affairs
(Article 35) . The use of firearms or
fireworks to cause explosions is prohibited except when authorised by the
Districts Mayor. Factories or industrial
plants which cause noise or fumes may be established only in places prescribed
by law or regulations[60],
and professions or trades which cause public nuisance can be regulated by order
of the District Mayor.
Part VI of the Law
deals with private guards who may be furnished with arms provided that they
meet the requirements for obtaining a licence to carry arms. Article 63 of the Law allows “companies,
public bodies, institutions, and private individuals” to engage, “for sufficient reasons”, private guards for
the protection of moveable or immovable properties. The guards shall wear a uniform or a special
badge approved by the public order authority and shall carry an identification
card issued by the authority.
Part III of the Law
covers the licensing of the following public venues:
1.
Public theatrical performances or cinema shall
not be held without prior authorisation (Article 45).
2.
A
Commission appointed by the Minister of Information and consisting of officials
from the Ministries of Information, Internal Affairs and Education, as well two
citizens may prohibit theatrical performances or cinema shows “for reasons of
morality or public order or where they are contrary to the national interest”.
The Commission may also prescribe that persons under 15 years of age may not be
permitted to attend certain performances or shows. The Commission’s powers may be delegated by
the Minister to Regional Governors or District Mayors.
3.
Any prohibition of a performance or show by the
Commission must be reasoned and submitted in writing to the parties concerned
and the Regional Governor.
4.
Contravention of this provision carries
punishment of up to six months or a fine of up to 3,000/-. Although Article 519 of the Penal Code
prescribes a lower punishment of a fine of 100/- to 5,000/- for holding public
performances and entertainment without licence, any such offences will be
dealt, instead, under the Public Order Law, because Article 13 of the Penal
Code says that where any offences are covered by more than one penal law, the
special law shall prevail over the general law.
5.
Petitions against the decisions of the Commission
(or the Regional Governor, as the case may be) shall be filed with the Minister
of Information. As this minister is not
“a public order authority” within the meaning of this Law, the general
provision under Article 9(3) of the Law which allows appeals to the Supreme
Court cannot be used, but, it is likely that the Supreme Court will accept
jurisdiction in such an appeal under its general power to review final
administrative law decisions of public authorities[61].
6.
Sports competitions in public places or places
open to the public are subject to prior authorisation of the District Mayor
(Article 47).
7.
Where there is a disturbance of public order or
danger to public safety, the public order authorities can order that the public
entertainment or competition be suspended or stopped (Article 47(2)).
8.
Public entertainment premises require
authorisation from the District Mayor.
Such authorisation is dependent on an inspection and a favourable
recommendation by a technical commission appointed by the Regional Governor,
which shall confirm whether the premises fulfil safety and hygiene
requirements. The Commission may also
suggest modifications or adaptations before it makes a recommendation. The Mayor may order, at any time, an inspection
of such premises to ascertain that they are still in proper condition[62].
9.
The names of any persons under 15 years of age
who are employed in performances or in shooting films shall be communicated in
advance to the District Mayor the Commission (referred to in paragraph 2 above)
which may prohibit their employment it might “undermine their moral integrity”[63]. This does not apply to performances or films
which have educational or charitable purposes.
10. Anyone
shooting scenes in a public place for films requires prior authority from the
District Mayor, and any contravention of this provision attracts a fine[64]. This provision, again, takes precedence over
the similar one in Article 520 of the Penal Code, except in so far as the
latter adds that whoever imports or exports cinema films without prior
authorisation shall be committing an offence punishable by a fine[65].
11. Anyone who
runs “a hotel, inn or boarding house, or regularly provides lodging for
payment” shall keep a register in which the names and relevant particulars of
guests as well as the names of the places from which they came from are entered
(Article 54).
12. A list of
prohibited games[66],
authenticated by the Police shall be exhibited in licensed premises, such as
hotels, boarding houses, restaurants, bars , tea and coffee shops (Article 53).
13. Overall, it
is the duty of the public order authority to ensure that laws on licensing are
complied with and that licensed premises observe their opening hours and other
conditions of the licence.
The Public Order Law, rather incongruously, includes a few provisions relating to minors who are “habitually addicted to begging or vagrancy”. Article 55 states that such a minor may be entrusted to the care of his father or guardian, or, in his absence to a near relative by the public order authorities in order that “education and conduct of the minor” can be supervised. But under Article 56, if the measures above do not work, then an order that the minor be admitted to a “welfare or rehabilitation institution” may be sought. The Law is silent on how that order may be made. The Penal Code deals with situations where a minor (aged under 14) commits an offence and is of “a dangerous character” and the judge “having special regard to the gravity of the act, and the moral conditions of the family in which the minor has been brought up, may order him to be committed to a reformatory for a period of not less than two years”. If the offence committed by the minor is a more serious one, the commitment shall not be less than three years.
If a person who is
legally bound to provide for the maintenance and care of a minor fails to do
so, public order authorities shall report the matter to the judicial
authorities so that criminal proceedings may be instituted against such a
person (Article 57). The Penal Code
(Article 430) makes it a crime[67]
for anyone exercising parental authority or legal guardianship to avoid his
obligation.
Article 26 of the 1960 Constitution declared that, other than secret associations or those with a military character, “every one shall have the right freely to form associations without authorisation”. A similar provision (Article 23(2) & 23(4)) is included in the Somaliland Constitution, but the explicit freedom to form them without authorisation is not included in this provision. Nonetheless under Part V of the 1963 Public Order Law, any association “of every kind, nature and aim” shall submit to the appropriate Regional Governor the deed establishing it, its constitution, list of office-bearers, names of promoters, and the location of headquarters and local branches within one month of its formation” - (Article 58). As no authorisation was necessary for the formation of an association, this scheme was more of a registration system, rather than authorisation system. Any changes to these particulars of the associations were also to be communicated to the Regional Governor. In brief, the Law adds:
1.
Associations which were against Article 12 of the
Somali Republic Constitution i.e those “which are secret or have an
organisation of military character or have a tribal denomination” shall be dissolved
by a decree of the Supreme Court in a proceeding initiated by the public order
authority (Article 60). In Somaliland
now, the relevant constitutional provision is Article 23(4), which outlaws
“Associations with objectives which are contrary to the public interest or are
secret or are military in nature or armed or are otherwise against the law,
whatever their outward appearance might be”.
2.
Other
associations established or functioning contrary to the law or carrying on
activities contrary to the “public order or morals” shall be dissolved by
decree of the Minister of the Internal Affairs, having heard the Council of
Ministers (Article 61).
3.
Associations whose activities “cause serious
disturbance to public order or constitute a serious offence to morals may be
suspended for a period not exceeding three months, by a written order, stating
the reasons thereof” of the relevant Regional Governor. Except in cases of “urgent necessity”, the
Governor shall, before issuing the order, notify the association concerned of
the charges and hear any explanations.
4.
The Law specifically mentions in Article 62(2)
that appeals in connection with any measures against Associations under these provisions
may be filed before the Supreme Court.
It should be noted, however, that these provisions relating to Associations do not apply to:
1. Associations,
which are, recognised as legal persons under law. The 1973 Civil Code[68],
Articles 54 to 68, accepts associations which have legal personality [69]
(persone Giuridiche) and sets out the conditions they have to meet to gain such
a status (Article 55), such as a constitution, meetings, and dissolution[70].
2. The three
Somaliland political parties accepted under Article 9 of the Constitution and
registered under a special law – the Registration of Political Associations and
Parties Law (Law No: 14 of 2000).
Article 6 of the latter Law lists
some of the rights of the three registered political parties as:
a) having
access to the national public media in an equitable manner[71],
and, having obtained the approval of the appropriate agencies, owning their own
special information services;
b) expressing
freely their political opinions, without damaging the public order and overall
peace of the Republic;
c) being
free from suppression or closure, and having the right to own their private
property;
d) being
able to put forward critical comments or to criticise other political parties
or the Government.
Recent public order
issues in Somaliland
As mentioned at the beginning of this article, two major issues have brought to the forefront controversies about the scope and extent of public order laws currently applied in the Republic of Somaliland. The first - an issue that has been simmering for a number of years – is the extra judicial activities of Regional Security Committees which have often sent to prison persons who may have committed public order offences. The second is the occasional ban and recently total ban of demonstrations and public assemblies by the Minister of internal Affairs. Having examined the relevant Constitutional and public order law provisions, I shall now proceed to explore both issues.
Somaliland Regional Security
Committees
Although Article 77 of the Public Order Law 1963 gives power to the Government to issue regulations, nothing in the Law sets up bodies called security committees, and no proper regulations issued under it could replace the definition of “public order authorities” in Article 2 of the Law which are specifically confined to the Minister of Internal Affairs, Regional Governors, District Mayors (Commissioners) and the Police. The Regional Security Committees, which currently exist in Somaliland, are, therefore, based on Siyad Barre’s draconian decrees and not the 1963 Law. Clearly, even before 1969 , Regional Governors[72] co-ordinated all the government departments in a region, but the establishment and exercise of extra-judicial powers by the Governors developed during the dictatorship era. The Committees apparently still consist of regional heads of the police, military and custodial corps, and the Regional public prosecutor, and are chaired by Regional Governors.
During the Siyad Barre dictatorship, the 1960 Constitution was immediately abrogated. The huge security machinery built by the regime under its draconian security legislation, which included the National Security Court (Maxkammadda Badbaadadda) and the Mobile Military Court (Maxkamadda Wareegta) was also buttressed by the Regional Security Committees (Gudida Nabadgelyada). With the limitation under the 1960 Constitution gone, the Security Committees often consisted of the Regional Governor, the military commander, the director of the National Security Service (NSS), a military officer, the police commander, the head of the Socialist Party , the Commander of the Victory Pioneers (Guulwadayaasha), and the commander of the custodial corps. Africa Watch in its 1990 Report [73]said this about the security committees:
“The RSC (Regional Security Committee) normally met once a week, and more frequently during an emergency. Any quorum of six could impose lengthy sentences, up to life imprisonment. The RSC had power over civilians in political cases where there was an element of an ambiguity. Superior to all the other branches of the security system, the RSC was, from the very beginning responsible for mass arrests. It had the power to impose a death sentence, but could not order that the execution be carried out. Death sentences passed by the district sections had to be approved at the regional level. The RSC could also confiscate the property and wealth of the victim. There is no appeal system. Only the President may “forgive” and release those sentenced by the RSC, which only happened in rare cases where influential families could intervene. The RSC also had the power to draw up and implement “legal” measures to quell unrest, such as the curfew system in the north …. In cases where there was suspicion but no hard evidence, the NSS interrogated the suspect and prepared the arrest warrant. The military commander determined the sentence, or in his absence, the governor…. The Party Secretary also prepared a list of people who failed to attend orientation centres on a regular basis and submitted it the RSC, seeking approval for their arrest and detention.”
These Security Committees were particularly active in the territory of Somaliland during the Barre dictatorship and it is only natural that Somalilanders have an understandable visceral loathing of these committees and other security apparatus. After the long war and the successful reassertion of the Somaliland sovereignty and democracy, no one can countenance the continued existence of even a shadow of the committees or special tribunals with extrajudicial powers, which existed before 1991.
No one can suggest that the Somaliland Regional Security Committees have acted or behaved anywhere as horrifically as the ones during the Siyad Barre dictatorship. It is, however, widely known, and accepted by the Government, that these Committees still exist in every region and have sentenced people, often in groups, to prison terms. Occasional newspaper reports give us glimpses of their activities:
·
Three youths who fired guns whilst, allegedly
under the influence of drink , in September 2001 were sentenced by the Burao
Security Committee to 1 year imprisonment each. (Maandeq newspaper)
·
Three youths who fired shots at de-mining operatives in August 2001 were
sentenced to 3 years imprisonment each by the Berbera security Committee.
(Mandeeq newspaper)
·
In October
2001, Erigavo Security Committee sentenced 6 people to prison terms . (Jamhuuriya newspaper)
·
Borama Security Committee has been very active
over the last few years and there have been numerous reports of people
(including youths) jailed for various “public order” offences arising out land
disputes and other public disturbances. For example, in January 2001, after
demonstration on a visit of the then Vice-President (now President), the
Security sent to jail for six months, 25 youths, and fined a further fourteen,
50,000/-, each.
·
In February 2001, Borama Security Committee sent
to prison 67 youths for 6 months each[74].
(Jamhuuriya 25/2/2001).
·
It has been reported that the Security Committees
issued directives relating to land (in Burao) and taxes (in Las Anod).
·
In July 1999, five youths were sentenced by
Hargeisa Security Committee to prison terms of 3 months to one year following
disturbances at speeches made by members of parliament at the public ground
(Khayriya) in Hargeisa.
·
on 11 May 2004 following disturbances and
demonstrations, 150 youths were sent to prison for 6 months by the Hargeisa Security
Committee.
·
There are many reports of the security committee
detaining young persons who are considered to be unruly or “out of
control”. This was confirmed by the
Minister of Internal Affairs, who, in an interview[75],
listed examples of people who were
sentenced to prison, who, he said,
included:
“… children/youth who did not obey their parents (caasi-waalidaynka ah) who are currently far too many. In the majority of such cases, the parents request that their children be detained, and when they are so detained for a period and they learn proper behaviour, they are released. This does not mean that they have been convicted to serve a long sentence, but this is legal and necessary.”
·
As confirmed by the Minister, in the same
interview, the other categories of persons imprisoned by Security Committees
include “those who drink alcohol in public, or stand at streets and assault the
public, or undertake acts which are in breach of the peace, such as those who
organise unlawful demonstrations….”
·
There are also allegations of individuals being
detained by the security committees at the behest of others, sometimes
allegedly through corrupt practices.
·
Others
alleged that some of the detentions were based on political considerations or
as punishment for criticism of the members of the security committee, who, by
definition, are the government’s local representatives.
·
Borama Security Committee has been reported
recently (October 2004) as imprisoning many young people who held
demonstrations about various issues including a fire at a property which was
allegedly not dealt with properly by the authorities.
The scale of the
extra-judicial activities of the Security Committees in Somaliland can be seen
in the figures for the number of prisoners in Hargeisa central prison which
were included in a formal report of the House of Representatives’ Social
Affairs Committee in June 2004. The Committee reported that of the
603 prisoners in jail (193 of whom were held in remand), 392 have been
sentenced to prison terms. Of these, 246 only were sentenced by a
court of law and the remaining 146 (37%) have been
sentenced by the Security Committees.
Government’s view about Security Committees
The
Government’s stand on the continuing use of Security Committees can be elicited
from the recent remarks[76] made by the Minister of Internal Affairs, who incidentally, is the
head of the National Security Committee.
If true, the remarks made by the Minister are worryingly indicative of a
desire to use a draconian law for suppressing any sign of dissent, including
the legitimate right of citizens to demonstrate in public. In one of the interviews[77], the Minister who spoke about his mission to build a strong police force
went on to say that no public demonstrations can be allowed in Somaliland until
the police force manages to get riot control equipment such as tear gas, water
canons etc. He accused the people who
were detained by the Hargeisa Security Committee on 18 May 2004 as trying to
end the government’s term of office. He
said that when there are too many people to be dealt with, they could not be
brought to the courts and added:
“We did not want them
detained for too long, nor even for a month, as this was to teach them good
behaviour and to bring them down a peg or two. That is why the Security
Committee orders the detention (short imprisonment) of people who create
similar disorder or those who use drugs or those who disobey their parents. We
released all the ones who were students.
Our actions were not against the law, and were in line with the law as
we were securing the peace. The day will
come when we will have the ability to wait and take all offenders to courts.”[78]
The
Minister’s sentiments were echoed by the Head of the Somaliland Procuracy
(Prosecution Service), the Attorney General, Mr Hussain Abdi Qalib[79]. The attorney General, in a
recent interview on 4 June 2004, opined that all countries[80] have security committees. He added that the committees deal with:
“…people who are engaged in a crime, but whose cases cannot be
proved in a court, such as drunkards, people who foment trouble; chiefs and
elders who secretly cause trouble between two tribes, but are not actually
engaged in fighting. All these are dealt with under this existing law, which
allows the committees to order 3 months imprisonment.”[81]
The
Attorney General concluded that the Public Order Law is needed because it
includes matters such as permission to be sought for demonstrations or the
rallies of political parties and warned, rather strangely, without any
reference to the Penal Code[82], that if the law is repealed and a member of parliament is stabbed at
the neck, no law will cover the situation!
The legality of the extra-judicial work of
Regional Security Committees
Like other constitutions, the Somaliland Constitution is based on the principle of separation of powers as between the legislative, the executive and the judiciary (see the preamble). The independence of the judiciary is based on the idea that the state organs are attributed with specific and exclusive competencies. This entails that non-juridical bodies do not exercise power in the area of adjudication, and particularly, in criminal matters where the liberties of individuals are at stake. Security Committees are run and staffed by employees of the Executive and cannot exercise such a fundamental judicial powers. As we have seen above, the Penal Code contains an array of offences which cover public order matters. Somaliland has functioning courts in all the regions and the majority of the districts. Under the new Organisation of the Judiciary Law[83] the Regional Courts and the District Courts (the latter dealing with less serious offences which carry a maximum three years sentence and/or a maximum fine of 3 million Somaliland Shillings[84]) have the jurisdiction to deal with all criminal matters. This jurisdiction includes public order offences. Both the Somaliland Constitution (Articles 100) and the Organisation of the Judiciary Law (Article 5(2)) list specifically the courts[85] of the land, and there is no room for any other committees or tribunals exercising judicial functions.
The issue, therefore is, does the Public Order Law 1963, as advanced by the Government spokesmen, provide for such extra judicial powers to the Regional Security Committees? The answer is unequivocally, no. The reasons are as follows:
1. The public order authorities charged with responsibilities for maintaining the public order under the 1963 Law are only the Minister of Internal Affairs, Regional Governors, Mayors and the police. No Committees including the military commanders are given any powers under the Public Order Law.
2. Although Article 3 of the Law allows public order authorities to take measures to maintain public order, these measures must be taken within the existing laws (i.e cannot be beyond the limits of the law), and they have to be necessary and appropriate in the performance of the function. Sentencing persons to prison terms without due process of the law is beyond the limits of the law and cannot be described as appropriate, when any individuals accused of any public order offences can be brought to court.
3. The only occasions when the public order authorities can take the emergency “provisional measures” listed under Article 75 of the Public Order Law 1963 is when a state of emergency has been declared under Article 92 of the Somaliland Constitution. No such emergency has been declared, over the last few years in Somaliland, except for the temporary one relating exclusively to the Sool region, which was attacked by forces of neighbouring Somalian warlord in 2003. Therefore, none of the “provisional powers” relating to restrictions on freedom of movement, or assembly or powers of arrest in Article 75 could be invoked by the Minister of Internal Affairs or the other public order authorities.
4. It should also be pointed out, that even if these were ever exercised under a properly declared emergency, the Somaliland public order authorities will be well advised to follow the limits of the exercise of these emergency powers which were set out in Article 17 of the 1960 Somalian Constitution in that any such measures must be reported immediately to a court of law until a Somaliland equivalent is promulgated, because that was the scheme under which the Public Order Law was supposed to operate in a democratic society. Failure by the court to confirm the measures will make them null and void.
5. As we have seen above under Article 92 of the Somaliland Constitution, the President may, in a serious emergency, issue decree-laws to meet the circumstances of the emergency. The emergency decrees have to be presented to the two Houses m within seven (7) days, and if the two Houses approve them, they shall be reviewed once every three months. Whilst, technically, a presidential decree-law under this Article can trigger the Minister of Internal Affairs’ power to issue emergency regulations under Article 71 of the Public Order Law, no such Presidential Decree-Law (other than the Sool Decree-Law) has been promulgated during the last few years and approved by the two Houses.
6. So far as the Minister of Internal Affairs’ claim concerning the Security Committee’s power to detain young persons so as to teach good behaviour is concerned, this cannot be a power which arises from the 1963 Public Order Law. The provisions relating to minors (Articles 55 to 57) in this Law relate specifically to minors who are “habitually addicted to begging or vagrancy” who, may, in accordance with the law, be “admitted to a welfare or rehabilitation institution”, and only when the parent or guardian fails to supervise their education and conduct. The detention and sentencing to prison terms of young persons participating in demonstrations or rallies by the Regional Security Committees can hardly fall within these provisions.
The House of
Representatives’ resolution on the Public Order Law
The House of
Representatives has already expressed its views about the Security Committees
when, by a resolution dated 1 August 1999 (ref: GW/KF-81/99
– see Appendix one) it rejected the Public Order 1963 which they were told by the Government
justified the operation of the Somaliland Security Committees. Despite this unambiguous decision, the
government continued to allow the Security Committees to function. In July 2001, when the House of
Representatives considered (and later) rejected a proposal to impeach the late
President Egal, one of the many articles of impeachment (Article 2e) related to
the allegation that the President has infringed the fundamental rights and
freedoms of individuals by continuing to use “national and regional security
committees which had judicial powers and have imprisoned hundreds of citizens
without recourse to the independent judiciary of which the citizens had a right
to have access to” and has done so without regard to the House of
Representative’s resolution which
rejected the Public Order Law 1963 (as amended) under which these
Committees operated. The articles of
impeachment added that this amounted to a contravention of the Constitution
(Articles 21(1), 25(3), 25(1), 23(3), and 28(1) & (2)).
In a recent highly
unusual intervention, the Speaker of the House of Representatives asserted that
as the articles of impeachment were later defeated by a narrow vote at the
House of Representatives, this meant that that the operation of the Security
Committees was legal and was unaffected by the 1999 resolution of the House to
reject the Public Order Law 1963 (as
amended). This, with respect, is plainly
wrong. The defeat in the House of the
articles of impeachment had no effect, what so ever, on the 1999 specific
resolution relating to the Security Committees.
In 1999, the President submitted to the House proposals to endorse the
continued use of the Public Order Law 1963 .
If the President was putting forward this as an emergency proposal under
the Article 117 of the 1979 Constitution (equivalent to Article 92 of the
current Constitution), then the proposed
presidential emergency decree-law endorsing the existence of the Security
Committees was rejected and became null and void. On the other hand, if the President was
seeking to get the House to endorse a new law, then he failed to get their
support and no law can pass without the approval of both Houses and the President. There are indications in the articles of
impeachment that the House was expecting the President to stop the use of the
Security Committees and to bring back to them a new Public Order Law which they
could debate and approve, if appropriate, and that he has failed to do so, as
well – hence their allegations that by continuing the use of the Security
Committees, the President was acting unconstitutionally. The rejection of the articles of impeachment
simply stopped the impeachment process, but did not make lawful, something
which, by all accounts, was unconstitutional and still remains so.
All in all, the House
Resolution was a powerful statement of the main Legislative chamber’s view of
the Constitutionality of the some of the provisions of the Public Order Law
1963, but as can be seen, from the analysis above, the House was clearly
attacking the Government’s interpretation of the Law when it consistently used
Regional Security Committees set up under Siyad Barre decrees which gave them extrajudicial powers which are way beyond any
powers given to “public order authorities” under the Public Order Law
1963. Although the Public Order Law
1963 was issued at a time when human rights practices have not developed fully
in the same way that they have done since, it did contain some checks and
balances and was confined by the provisions of the 1960 Constitution. There are some measures, like sequestration
of property and the emergency powers, which are too wide and encompassing for
modern human rights laws, but the bulk of the law does not infringe individual
liberties and, to some extent, the reaction of the House was tantamount to
throwing the baby with the bathwater, but
was understandable in the light of the obfuscation of the whole issue by
a Government, which appeared to be hell bent on maintaining draconian powers of
arrest and control for its officials.
Other than the elected mayors, all the officials of these Regional
Security Committees are government employees, and this is a basic affoent to the
fundamental Constitutional principle of separation of powers for members and
employees of the executive to exercise judicial powers.
Any law which is
contrary to the Somaliland Constitution is null and void under Article
112. But, where there is an argument
about this issue, only the Supreme Court can make a definitive ruling. From the political point of view, the
Government ought to have taken note of the Resolution of the House, but,
barring a Supreme Court pronouncement, the surest way that the House of
Representatives can get rid of the
Security Committees is to pass a law repealing the Public Order Law and all its
amendments passed by the dictatorship, and to use the provisions of Articles 77
and 78 of the Constitution in getting the bill
through should the President refuse to sign it into law. The advice of the Somaliland Forum
Constitution & Law Committee[86]
is for Parliament to pass a narrow bill abolishing the extra-judicial work of
the Security Committees, and to ask the Government to submit to them as soon as
possible a new Public Order Law, which
may contain many of the neutral provisions of the 1963 Law but would take on board
the protection of fundamental rights and freedoms.
The Minister of Internal Affairs has also commented that no demonstrations or public assemblies can be allowed in Somaliland until Somaliland has a properly equipped riot police. The right to demonstrate peacefully is a fundamental right, which cannot be given or withdrawn at the behest of a government minister. Everyone accepts that the police who are in charge of public order ought to have a say in how such public demonstrations are organised, such as their route, crowd control etc, but the emphasis should be on the people’s right to demonstrate unless there are legitimate public order concerns by the police which ought to be discussed with the organisers and any refusal or rejections by the police should be subject to judicial oversight. Even Article 9 of the Public Order Public 1963 provides for an appeal system against the decision of the public authorities to prohibit or suspend a public meeting or a demonstration. Demonstrations against the policies of sitting governments are the hallmark of any democratic country and government ministers and their regional officials should not be the ones who have the final say in these matters, and neither should they be able to order blanket bans.
On
17 July 2004, the Minister of Internal Affairs issued a Circular (see Appendix
3) after a well publicised series of evening debates about how Somaliland can
counteract the likely effects of the Nairobi Somalian Peace Conference were
organised by a well respected Somaliland intellectual and former Director of
the Hargeisa Peace Academy, Dr Bulhan, who had previously facilitated
discussions between political parties.
The Circular, which does not mention the specific law which gives the
Minister the power to issue it was addressed to all the Regional and
District Security Committees and to the national police command and provisionally
bans all organisations, foreign and domestic, from hold assemblies, meetings
or debates relating to political issues as from 17 July 2004[87]. The Circular gives the reason
for the ban as being the heightened circumstances and the existence of plots to
damage the peace, which it was said, were hatched by the enemies of Somaliland
who are exploiting persons in Somaliland.
The Circular warns that all non-political and non-governmental
organisations and the civil society must concentrate on their own objects and
must stay out of politics. As for the
three political parties, they are free to hold political meetings or seminars
at their promises or at hotels, booked in their own names, and may invite
anyone they so wish. Political matters
may also be discussed in the independent or state media, and advice and
criticism may be rendered, as usual, but the media must avoid anything that may
damage the peace.
In
view of the fact that no one, other than the government can set up a radio or
television (on the order of the Minister of Information), and that no one,
including the political parties can hold public meetings or assemblies, which
may be construed as being political in nature, the strictures of this Circular
have been considered by everyone as being severe and unjustifiable, in these
circumstances. It is difficult to see
how such a blanket ban which is not backed by a Presidential Decree Law under
Article 92 of the Constitution can be lawful.
The definition of what constitutes “politics” is very wide and Ministerial
Circular which orders that no one other the political parties can discuss
publicly “political issues” cannot be an appropriate and proportionate measure
to meet an undeclared emergency situation.
The fact that the Constitution limits the number of political parties to
three (Article 9(2)) does not mean that everyone else, other than the three
parties lose the right to discuss “politics” or political issues. Even
associations which are charitable in nature can campaign on issues and would
only need to be careful about straying into partisan “Party Politics”, but
issues concerning the future of the country, the people, poverty, human rights,
the environment, social policy etc are very much the province of pressure
groups who may or may not also have charitable objectives. On the face of it, the Minister’s blanket ban
contravenes the following articles of the Constitution:
It is widely accepted that any limitations on the rights and freedoms enshrined in any Bill of Rights must meet the strict criteria mentioned in this article. The restrictions currently invoked by the Somaliland public authorities fall at the first hurdle in that no one is even sure of which law the Government is relying on in those occasions when persons are charged with public order offences outside the Penal Code or blanket bans of demonstrations or public assembly are ordered by a minister. The Government and individuals are charged with safeguarding the fundamental rights and freedoms of individuals and the limitations on these rights which they have imposed in the areas covered by this article do not meet any of tests which allow some derogation. There are also no emergencies which justify such draconian action and, in nay case, there are clear constitutional provisions for declaration of emergencies.
There are, as yet, no organised and funded organisations that can challenge the decisions/actions of the Government at the Supreme Court, and many individuals who are affected by these actions cannot afford expensive legal challenges which may come to nothing. Many voluntary organisations representing the civil society as well as the two opposition political parties have protested loudly against the use of the security committees and the ban of public assemblies. The political parties announced that they have written to the Chairman of Supreme Court, but, sadly, they have not issued legal proceedings in the way that they ought to have, and it is not clear whether the Supreme Court will consider formally these issues.
There is of course a need for urgent action, and the immediate reforms that need to be undertaken by the Government and Parliament are as follows:
a)
To release any persons currently serving a term
of prison imposed by a Regional Security Committee, and to extend an amnesty to
every one who has so far been convicted of an offence by such committees.
b)
If a separate public order law is required (which
depends on how soon the Penal Code reforms can be undertaken), to introduce a
modern public order law that conforms to the Somaliland Constitution and
international human rights law.
c)
To include in the current review of the Penal
Code a wholesale revision of this old law (based on the 1936 Rocco Penal Code)
and get rid of the many offences which are contrary to modern human rights law, such as criminal libel, sedition,
numerous offences against the state and public authorities, such crimes of
insulting public officials or courts
that were developed for the 1930s Italy, and of course, references to
Somalia.
d)
To ensure that, in undertaking this revision, new
illiberal offences based on dubious arguments about morality are introduced,
especially in respect of punishments and types of offences.
e)
To include in the Penal Code all the necessary
offences against the public order, which are in line with modern concepts of
human rights.
f)
To issue a separate law on licensing public
functions, entertainment etc, which ought to remain the responsibility of the
elected local authorities.
g)
To issue a separate law and code of practice
relating to public processions, meetings and demonstrations, which emphasise
the rights of citizens. Unless there is
an emergency declared by Parliament, there should no blanket ban of the public
meetings, demonstrations etc. The
appeals against against any refusals by police should go to the to the Regional
Court, and then higher up the courts, if necessary.
h)
To remove from all public authorities, including
ministers, any powers of arresting citizens which old laws may have given them
and to leave that power to the police, the Public Prosecutors and the courts of
law.
i)
To foster a climate of public officers serving
the public rather than the other way round and a greater accountability to the
public and transparency on the part of the decisions of all public
officers. We should re-consider the
recently re-confirmed jurisdiction of all administrative cases going to the
Supreme Court (see Article 9 of the Judiciary Law 2004). Citizens should be able to challenge
administrative decisions at their local
Regional Court.
j)
To ensure that the House of Representatives has a
select committee on delegated legislation which can consider all regulations
issued by the Government under delegated powers given to it by specific laws
and to ensure that these regulations are not implemented until the House checks
their legality and content.
k)
To set up a Somaliland Human Rights Commission,
whose members are appointed by Parliament and who have the power to
investigate all complaints of human rights infringements, make unannounced
visits of places of detention (currently done by the Attorney General), take
cases on behalf of applicants or in its won name, and report directly
Parliament.
l)
To ensure that House of Representatives fulfils
its constitutional duty under Article 130(5) and seeks actively from the
Government to submit to it within set time limits new laws which are in
conformity with the Somaliland Constitution and can then replace out of date
Somalian laws.
m)
To seek international funding and expertise for a
full review of all laws and for drafting new laws which are in line with the
Somaliland Constitution. Funds
permitting, to appoint a statutory Law Commission which will undertake a
comprehensive review of the laws and recommendations on new laws and can make recommendations to both
Parliament and the Government. It
need not matter whether the Commission members are foreign experts or are not Somalilanders as
their advice and work can be easily translated.
Ibrahim Jama ©
December 2004
APPENDIX ONE: SOMLALILAND
HOUSE OF REPRESENTATIVE’S RESOLUTION ON THE PUBLIC ORDER LAW 1963
GW/KF-08/99/99 01/08/99
RESOLUTION REPEALING PUBLIC ORDER LAW (NO: 21 of 1963)
The House of Representatives of the
Republic of Somaliland
Having seen: Articles 40, 41, 42, 44, 45, 59, 124, 125 and 155 of the Constitution of the Republic of Somaliland[88].
Having seen: The motion forwarded to the House by the honourable members on 14/07/99 and 10/11/99 relating to the emergency legislation and having noted that the Public Order Law No 21 of 1963 is still used in the country.
Having noted: That this law consists of :
· Parts which need the promulgation of further laws, such as those relating to hotels.
· Some general provisions relating to the judicial system, which are still in use.
· Some special provisions, such as the reform of juvenile behaviour.
· Some provisions which are contrary to the Constitution, Islam and the international conventions on human rights to which the government of the Somaliland Republic has accepted.
Having seen: That the provision which do not conform to the Constitution and Islamic Sharia are null and void as set out in Article 155 of the Constitution.
Convinced: That there is, thanks to Allah, no disorder in the country which justifies emergency rule.
Having recognised: That the law enforcement bodies (the judiciary, the police and the Corrections Service) are function, whatever their effectiveness might be.
Having considered: The proposal of the working group and the Legal Adviser of the House have made and the opinions of the honourable members who contributed the debate during the period of 14 to 27 July 1999.
Having voted: On the points the crux of which was collated at the sitting on 27 July 1999 when there were 54 members present.
Have approved on a majority show of hand vote of 49 votes for, 1
against and 3 abstaining (with the chairman not voting, as usual), the
following resolution:
1. The Government must work diligently in ensuring that the law
enforcement agencies undertake their functions effectively.
2. The Public Order Law, No:21 of 1963 conflicts with the Constitution,
Islamic Sharia and international conventions relating to human rights, and is
therefore null and void.
3. If the country faces a situation of disorder which threatens the
public order, peace, public confidence, economy etc, the President should used
the emergency power under Article 117 of the Constitution and seek the appooval
of the two Houses of Parliament as set out in Article 78(5) of the
Constitution.
Praise be to Allah.
Mohamad Hussain Osman
Secretary General of the House of Representatives
Ahmed Mohamad Adan
Chairman of the House of
Representatives
01/08/1999
APPENDIX
2: THE REPORT OF THE LEGISLATION COMMITTEE OF HOUSE POF REPRESENTATIVES ON THE PUBLIC ORDER LAW:
The
House Legislation Committee chaired by Representative Feysal Haji Jama, who is
currently the Chairman of the Supreme Court Reported thus (as reported by Jamhuuriya):
“ FEYSAL HAJI JAAMAC: Xeerka nabadgelyada
guud waxa weeye xeer duq ah (Puplic Order law), oo soo baxay 14kii September
1963kii, kana kooban 78 qodob, wuxuuna u qaybsamaa 8 qaybood, kuwaas oo qaar ka
soo jeedo xeerka ciqaabta, qaar waxay ka soo jeedaan xeerka madaniga, wakhtigaa
la sameeyay xeerkanna waxa jirtay duruuf sababtay in la isu keeno intaas oo
dhan. Qaybaha uu ka kooban yahay xeerkaasi waxa qaarkood ku dhex jiraan shuruuc
kale oo ka dambeeyay oo qaarkood ka ballaadhan yihiin. Waxa jira qaybo
sharcigan ku tilmaaman oo u baahan in shuruuc gaar ah lagu soo saaro, oo ay
hay'adda ama Wasaaradda arrintaasna ay soo diyaariso oo golaha wakiillada hor
keento. Waxa kale oo jirtay in xilligii nidaamkii Siyaad Barre xeerkan lagu
dhaqan-geliyay dhinaca hudheelada hurdada, oo hudheel kasta waajib lagaga
dhigay in uu sameeyo diiwaan lagu qoro cidda jiifsata, taariikhda ay soo gashay
iyo taariikhda ay ka baxday, taas oo ay ciidankii nabad-sugidda la odhan jiray
koontarooli jireen. Markaa qaybaha uu sharcigani ka kooban yahay waxay u
qaybsan yihiin qaar shuruucda waaweyn ku dhex jira iyo qaar u baahan shuruuc
gaar ah.
Waxa jira saddex hay'adood oo u xilsaaran fulinta
sharciga, kuwaas oo kala ah; Booliska, Hay'adaha Garsoorka oo ka kooban
maxkamadaha iyo Xeer-ilaalinta, iyo ciidanka Asluubta. Markaa haddii ay
hay'adahaasi yihiin kuwo dhaqangal ah oo shaqaynaya oo fulinaya sharcigii ay u
xilsaarnaayeen, looma baahna xeerka nabadgelyada guud; haddii ay yihiin kuwo
aan shaqaynayn oo ay jirto ama timaado xaalad nabadgelyada khalkhal gelin
kartaa, waxa Madaxweynuhu ku tallaabsan karaa qodobka 117aad ee Distoorka
Qaranka”
" FEYSAL HAJI
JAAMAC: Markaanu aragnay xeerka nabadgelyada guud; markaanu aragnay
qodobada distooriga ah ee soo jeedinta ku xusan; markaanu qiimaynay aqoonsiga
ay xukuumaddu aqoonsatay baaqa caalamiga ah ee xuquuqda bani-aadmiga; markii
aanu garwaaqsanay in hay'adaha fulinta shuruucdu ay yihiin kuwo shaqeeya oo
dedaalaya, ayna tahay in xukuumaddu sida ugu firfircoon uga shaqaysiiso
saddexda hay'adood ee aynu soo sheegnay. Waa in markaa xeerka nabadgelyada guud
dhinac la isaga dhigo (la laabo), haddiise ay suurtoobi weydo in hay'adahaasi
shaqayn waayaan oo ay timaado wax nabadgelyada guud khalkhal gelin kara, waa in
Madaxweynuhu ku tallaabsado qodobka Distoorka 117aad".
" FEYSAL HAJI JAAMAC: Ma jirto dhacdo gaar ah oo aanu baadhnay oo
dabotag ku samaynay oo aanu nidhi nimankaasi maxay ahaayeen, tiradoodu waa
intee, magacyadoodu waa kuwee, maxay ku xidhan yihiin, balse guud ahaan ayaanu
sharcigan u baadhnay".
" Maxamuud Xaashi Cabdi: Sida uu walaalkay Faysal sheegay ayaanu
annagu u soo dhignay arrinta. Markaanu guddi ahaan isu tagnay, waxaanu is
tusnay in waxa ay guddiyada nabadgelyadu ku andacoodaan uu yahay xeerka la
yidhaahdo "Public Order Law” soo baxay 1963kii, taas oo aanu nidhi aynu
isla eegno marka u horraysa, sharcigan iyo awoodihiisa iyo wakhtigan sida uu u
qaabili karo hanaankeena caddaaladeed. Waxaanu markaa ka dhignay laba qaybood
oo qodobada uu ka kooban yahay qaybi waxay ku jirtaa shuruuc ka dambaysay oo
maanta jirta, qaybta kalena waxay u baahan tahay in lagu soo saaro shuruuc hor
leh, ka dib na waxaanu gunaanad ka dhignay sharcigaa (xukunka degdegga ah)
looma baahna maanta in uu jiro, waxaana marag u ah hay'adihii garsoorka iyo
hay'adihii nabadgelyada ayaa jira, taasna waxaanu nidhi Guddi Nabadgelyo oo wax
xukunta looma baahna. Waxa kale oo meesha taal haddii ay abuurmaan xaalado
nabadgelyada halis gelin kara oo nidaamka iyo xeerka baabi'in kara oo loo
baahdo xukun degdeg ah, waxay xukuumaddu xaq u leedahay in sifo qaanuuniya,
Madaxweynuhu u soo jeediyo xukun degdeg ah oo gobollada oo dhan ku eg ama gobol
ha ku ekaadee”.
APPENDIX
3: COPY OF MINISTERIAL CIRCULAR
This
Order issued by the Minsiter of Internal Affairs is addressed to all Regional
and District Security Committees and bans all assemblies and discussions relating to 2political
affairs”:
Wareegtu ku socota:
Dhammaan
Guddiyada Nabadgelyada ee Gobolada iyo Degmooyinka Dalka
Taliyaha Ciidanka Booliska JSL,
Ogeysiin:
Madaxweynaha
iyo M/kuxigeenka, Wasiirka Gaashaandhigga
Xeer
Ilaaliyaha Guud ee Qaranka
Wasiirka
Warfaafinta,
Marxaladda xasaasiga ah ee dalku marayo awgeed
iyada oo ay jiraan shirqoollo lagu dhaawacayo Nabadgelyada iyo iska-horkeenno
cadowga Somaliland uu ku talagalay iyakoo adeegsanaya ashkhaas inaga mid ah,
Hay’ado shisheeye iyo kuwa waddani ah, waxa si ku meel-gaadh ah sababo
nabadgelyo awgeed loo hakiyey shirarka iyo doodaha la xidhiidha arrimaha
siyaasadda laga bilaabo 17/07/2004.
Hay’adaha shisheeyaha, kuwa waddaniga ah iyo
ururrada bulshada (Civil Society) waxa lagu adkaynayaa inay ku ekaadaan
hawshooda ah in aanay siyaasad shaqo ku lahayn (Non-Political and
Non-Governmental).
Axsaabta siyaasadda waxa u bannaan oo ay xaq u
leeyihiin wixii siyaasad ah, aqoon-isweydaarsiga inay xarumahooda iyo
hudheeladaba ay magacooda ku qabsan karaan, cidda ay rabaanna ay ku casuumi
karaan. Sidoo kale, saxaafadda madaxa bannaan sida TV-ga iyo tan dowladdaba
waxa lagaga hadli karaa laguna soo bandhigi karaa arrimaha siyaasadda,
Aqoon-isweydaarsiga, talooyinka iyo dhalliilaha sidii horeba u jirtey, iyadoo
laga feejignaanayo wixii dhibaato Nabadgelyo inagu abuuri kara.
Waxa
lagu adkaynayaa masuuliyiinta ay wareegtadani u socoto inay si buuxda ugu
dhaqmaan amarkan kana feejignaadaan wax kasta oo keeni kara Nabadgelyo darro,
khalkhal gelin iyo xasilooni darro ku abuuri kara Dalka gudihiisa.
Wasiirka
Arrimaha Gudaha ee JSL
17 /07/2004
APPENDIX 4: The Right to Freedom of Assembly
Public Order issues affect activities which are protected by
fundamental rights of freedom of assembly and freedom of expression, and of
course other rights relating to individuals. I set below the main international
conventions relating to the freedom of assembley as an illustration of the
international norms.
Treaties
Article 21, International
Covenant on Civil and Political Rights
The right to peaceful
assembly shall be recognised. No restrictions may be placed on the exercise of
this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interest of national security or
public safety, public order (ordure public), the protection of public health or
morals or the protection of the rights and freedoms of others.
Article 15, The
Convention on the Rights of the Child
1. States Parties recognise the rights of the child to
freedom of association and to
freedom of peaceful
assembly.
2. No restrictions may be placed on the exercise of these
rights other than those
imposed in conformity
with the law and which are necessary in a democratic
society in the interests
of national security or public safety, public order (ordre
public), the protection of public health or morals or the
protection of the rights
and freedoms of others.
Article 8, African
Charter on the Rights and Welfare of the Child
Every child shall have
the right to free association and freedom of peaceful assembly in conformity
with the law.
Article 11, The African
Charter for Human and Peoples’ Rights
Every individual shall
have the right to assemble freely with others. The exercise of this right shall
be subject only to necessary restrictions provided for by law in
particular those enacted
in the interest of national security, the safety, health, ethics and rights and
freedoms of others.
Article 11, European
Convention for the Protection of Human Rights and Fundamental Freedoms
1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right to form and to
join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the
State.
Article 15, American
Convention on Human Rights
The right of peaceful
assembly, without arms, is recognised. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and
necessary in a democratic society in the interest of national security, public
safety or public order, or to protect public health or morals or the rights or
freedoms of others.
Declarations
Article 20, Universal
Declaration on Human Rights
1. Everyone has the right to freedom of peaceful assembly
and association.
2. No one may be compelled to belong to an association.
Article 5 (a),
Declaration on the Rights and Responsibility of Individuals, Groups and Organs
of Society to Promote and Protect Universally Recognised Human Rights and
Fundamental Freedoms
For the purpose of
promoting and protecting human rights and fundamental freedoms, everyone has
the right, individually and in association with others, at the national and
international levels:
(a) To meet or assemble peacefully; (...)
Article XXI, American
Declaration of the Rights and Duties of Man
Every person has the
right to assemble peaceably with others in a formal public
meeting or in informal
gathering, in connection with matters of common interest of any nature.
Charter of Paris for a
new Europe: A New Era of Democracy, Peace, and Unity
Human Rights, Democracy
and the Rule of Law
(...) We affirm that,
without discrimination every individual has the right to:
Freedom of association
and peaceful assembly, (...)
Others
Article 12, Basic
Principles on the Use of Force and Firearms by Law Enforcement
Officials
As everyone is allowed to
participate in lawful and peaceful assemblies, in accordance with the
principles embodied in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political rights, Governments and law
enforcement agencies and officials shall recognise that force and firearms may
be used only in accordance with principles 13 and 14.
Article 13, Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials
In the dispersal of
assemblies that are unlawful but non-violent, law enforcement
officials shall avoid the
use of force or, where that is not practicable, shall restrict
such force to the minimum
extent necessary.
Article 14, Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials
In the dispersal of
violent assemblies, law enforcement officials may use firearms only when less
dangerous means are not practicable and only to the minimum extent necessary.
Law enforcement officials shall not use firearms in such cases, except under
the conditions stipulated in principle 9.
Article 23, Basic Principles
on the Role of Lawyers
Lawyers like other
citizens are entitled to freedom of expression, belief, association and
assembly. In particular, they shall have the right to take part in public
discussion of matters concerning the law, the administration of justice, and
the promotion and protection of human rights and to join or form local,
national or international organisations and attend their meetings, without
suffering professional restrictions by reason of their lawful action or their
membership in a lawful organisation. In exercising these rights, lawyers shall
always conduct themselves in accordance with the law and the recognised
standards and ethics of the legal profession.
[1] On 26 June 1960, the former British Somaliland Protectorate became the independent State of Somaliland. This state formed a union with Somalia in July 1960, and after a long civil war and the disintegration of the united state, the people of Somaliland through their constituent assembly in May 1991 decided to reassert their independence and the Republic of Somaliland was re-born. Somaliland has international borders, a defined population and the ability to enter relations with other countries. A referendum in 2000 confirmed the Constitution of the Republic and the local authorities and the President (who heads the Executive) have been popularly elected. Parliamentary elections will be hold in early 2005. The legislature consists of two houses and there is an independent judiciary.
[2] It is a matter of great regret to this author that the original intention to have elected Regional Councils envisaged in the Constitution has been abandoned by the time the 2002 District & Regions Law (Law No: 23 of 2002) was passed.
[3] The quote is attributed to an observation by John Selden, 17th Century jurist, that the official measure of justice might as well be the foot, because it varies according to the length of the Chancellor’s foot. Equity dispensed by the Chancery Court was developed initially to ameliorate injustice that may arise out of the application of the common law.
[4] See Articles 8 and Articles 21 to 36 of the Constitution.
[5] Under Article 128(2) of the Constitution, “the Constitution shall be the supreme law of the land, and any law which does not conform to it shall be null and void”.
[6] This Clause appears in an Article relating to the right to liberty, but as it talks about the “the freedoms of the person”, it is not just confined to individual liberty. In the 1997 longer Constitution this Clause was in a separate Article headed “Guarantees and the Provision for Rights & Freedoms” and in the 2000 revision many articles were combined, which reduced the Constitution from 156 articles to 130.
[7] Some fundamental rights in which no derogation, whatsoever, is permissible under international law are set out in Article 4(2) of the ICCPR. These are the right to life; the right not to be subjected to cruel, inhuman or degrading treatment or punishment; the right not to be held in slavery or in servitude; the right not to be imprisoned merely on ground of inability to fulfil a contractual obligation; the right not to be convicted of an act which did not constitute criminal offence when it was committed; the right to be recognised as a person; and the right to freedom of thought, conscience and religion. In the European Convention on Human Rights some of the rights which cannot be limited are the right to life, the right not to be subjected to torture or degrading treatment or punishment, slavery or servitude, right to liberty and security of the person, right to a fair trial, right not to be convicted of an offence which was not a crime when it was committed. There are broadly similar categories in the 1981 African Charter on Human & Peoples’ Rights which cannot be limited.
[8] See, for example, the Canadian Supreme Court
test in R v Oakes (1986) 1 SRC 03:
“To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high …. Second …. the party invoking [the limitation] must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. … There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".
[9] Mandel T “Criminal Content Restrictions” A Conference paper available at http://www.article19.org/docimages/629.htm
[10] For example, Article 21 of the ICCPR states that “no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
[11] Similar wording is used in
Article 15 of the European Convention on Human Rights, which relates to
derogation in time of emergency. In the Greek
Case (1969) 12 YB 1, the ECHR Commission described the features of such an
emergency as having the following characteristics:
“(1)
It must be actual or imminent.
(2) Its effects must
involve the whole nation.
(3) The continuance of
the organised life of the community must be threatened.
(4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate." (para 153 of the Opinion).
[12] See “The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights"[12], para 40, under the heading "Public Emergency which Threatens the Life of the Nation" (1985) 7 HRQ 3.
[13] Paragraph 39 of the Siracusa Principles, supra.
[14] See, for example Article 37 of the South African Constitution and Article 56 of the Russian Constitution.
[15] See Article 38(6) of the Constitution.
[16] In many ways, however, the similar provisions in the 1960 Somalian Constitution were much more clearer in declaring unequivocally that any emergency decree-laws which were not converted into law by the National Assembly shall cease to have effect ab initio (as if they have never existed) – Article 63(3).
[17] Despite this clear constitutional bar, I have been reliably informed some Government Bill are implemented by Ministers as soon as the cabinet approves the draft and well before they are approved by both Houses of Parliament. Clearly if any such bill affects the rights of the citizen, it ought to be considered as null and void by the courts. Under the 1960 Somali Republic Constitution, there was a category of legislation on specifically defined topics which Parliament could delegate to a specific Minister who issues the law as a “Legislative Decree”. There is no similar provision in the Somaliland Constitution – on the contrary, Article 38(1) whilst confirming that the legislative powers of the state are vested exclusively in the Legislature, which consists of the two Houses of Parliament., goes further and declares that the power to legislate cannot be transferred to anyone outside the Parliament. Yet, quiet correctly some laws empower a minister to issue regulations, but it is submitted that even these must be approved by Parliament before they are implemented.
[18] It was rather puzzling to note that one of the newspapers reports about the sentences passed by Borama Regional Security Committee on 71 youths in February 2001 claimed that the youths were sentenced under “Public Order Decree –Law No 21 of 2000”, which was said to be issued on 18th August 2000. The Report in the Jamhuuriya daily of 25 February 2000 quoted that the sentences were based on Articles 2 and 40 of this Decree –Law. I can find no other reference to this Decree-Law, but a list of laws passed by the House of Representatives and drawn up by the Clerk of the House indicates that a “Public Order Bill” was rejected by the House and returned to the Government. In the latest Regional Security activities, the only Law that has been mentioned by the Attorney General and the Ministers was the Public Order Law of 1963.
[19] Article 3 of the Impeachment Articles titled contravention of the fundamental rights and freedoms of citizens included an allegation that the Government continued to use emergency legislation and the Public Order Law 1963 even though the House of Representative specifically declared the latter unconstitutional.
[20] Article 53.
[21] All the Regional Governors are appointed or dismissed by the Ministry.
[22] Articles 13(2) of the Regions & Districts Law (Law No 23 of 2002).
[23] This was illustrated, at first, in Article 151(7) of the 1997 Constitution which was a reversal of the position set in Article 31(1) of the 1993 Somaliland Charter to the effect that the laws implanted in the Republic of Somaliland shall be “Islamic Sharia and those laws passed prior to 20th October 1969 which did not conflict with Sharia or the fundamental rights and freedoms of the person”. The significance of the date was that it was the day before military coup led by General Siyad Barre , who ended up ruling the united Somaliland/Somalia state until he was forced out of power in 1991.
[24] Except for a minority of fundamentalists, Somalilanders agree on the whole that other than family and personal law matters, the main test is ascertaining which pre-1991 laws affect fundamental rights and freedoms guaranteed under the Somaliland Constitution. On that test, the Personal Status (Family) Law (Law No 23 of 11 January 1975) is considered by all as null and void on Sharia grounds, Civil Code (law No 2 of 2 June 1973) which was actually based on the Egyptian (and other Arab) Civil Codes is considered to be, on the whole still valid. Yet both were passed during the dictatorship of Siyad Barre.
[25] I served as member of the successor body of this Commission for a number of years in the mid 1970s although by then, we had neither the wide brief nor the expertise of the early 1960s Commissions. By then the Commission was known as the National Draft Legislation Committee, in Somali, Gudiga Xeerdejinta Qaranka.
[26] Legislative Decree No 5 of 16 December 1962, which came into force on 2 April 1964.
[27] Legislative Decree No 1 of 1 June 1963, which came into force on 31 March 1965.
[28] Crimes cover serious offences which are dealt with in Book II of the Code and contraventions are less serious offences, such as contravening licensing laws and is covered in Book III of the Code.
[29] Resolution GW/KF-08/99/99 of 1 August 1999.
[30] One of the statutory functions of the Ministry of Internal Affairs is the “engagement and management” of the traditional leaders (Sultans, Garaads and Aqils) – Art. 2(6) of the Ministry’s Law. It is also one of the functions of the Regional Councils to mediate in any disputes between the districts in each region or between the various communities (Article 13(5) – Regions & Districts Law)
[31] The members of the GUURTI, House of Elders have also a responsibility in helping the Government and the traditional leaders in the settlement of dispute s - see Article 61(4) of the Constitution..
[32] Article 2.
[33] Articles 17 and 33 of the Regions and Districts Law.
[34] Article 3. of the Public Order Law.
[35] Article 4of the Public Order Law.
[36] See above in the section relating to the limits of fundamental rights.
[37] But no authorisation may be given to a person who has been sentenced to prison for a term of a year or more or to someone who has been subject to a security measure under Articles 161 to 183 of the Penal Code
[38] This means a crime done intentionally. Article 24 of the he Penal Code defines the psychological element of an act of an offence (in English law, mens rea) as being a) intention, where the harmful or dangerous event which is the result of the act or omission is foreseen and desired by the offender; b) preterintention (or beyond intent) where the harmful or dangerous event arising from the act or omission is more serious than the one desired by the offender; or c) with culpa, or against intent, where the event, even if foreseen, is not desired by the offender and occurs as a consequence of negligence, imprudence, lack of skill, or non-observance of laws, regulations, orders, or instructions.
[39] Ordered by a court under Articles 165 and 166 of the Penal Code.
[40] Declarations made by a judge under Articles 65 and 67 of the Penal Code.
[41] Presumably this means through the authority itself, at first, before the decision is confirmed by the authority as being final.
[42] See Article 9(4)(c) of the new Organisation of the Judiciary Law 2004.
[43] See Article 65 of the Penal Code – whoever after having been convicted of two crimes, not committed with culpa, is again convicted of another crime, not committed with culpa, and where the judge having taken into account the nature and circumstances of the offences, and the conduct and life of the offender, is of the opinion that the offender is addicted to crime shall be declared a habitual offender. The effect of the declaration is that the person may then become subject of security measures (see Article 67 of the Penal Code).
[44] Police Surveillance Orders are security measures which can be ordered by courts under Article 178 of the Penal Code and are aimed at stopping a person committing further offences. There is an obligation under Article 178(3) for the surveillance “to be exercised in such a manner as to facilitate, by means of work, the readjustment of the person to society”.
[45] This was one of the powers exercised by District Commissioners in the Protectorate days, and was often undertaken to head off or stop communal tit for tat violence. As a young boy in the 1950s, I do remember occasions when Ilalos (tribal policemen) and mobile police units rounded up camels belonging to specific sub clans. I cannot imagine that in 2004 Somaliland, public authorities would be in a hurry to undertake such a pre-emptive group-based sanction, which is likely to add fuel to the fire. A court sanctioned sequestration may, however, be necessary in certain situations.
[46] These were also laid down in the Article 68 (state of war) and article 63 (Decree law in cases of urgent necessity).
[47] Under Article 68 of the 1960 Constitution declaration of war was made by the Assembly.
[49] Article 73 of the Law.
[50] These fines are the 1963 fines.
[51] See above in the section relating to the limitations on rights. The restriction in the Somaliland Constitution are only for national interests, security or conflict with the rights of others.
[52] In the submission to the Somaliland Government about the Elections Laws, the Somaliland Forum has recommended that such notices should go to the Police and not the Mayor, who will have a interest in party politics.
[53] This is the same definition of public meeting in the Penal Code. See for example Article 209(4) – a meeting is a public one if “owing to the place in which it si held, or the number of persons present, or its purpose or object, (it) has the character of a meeting which is not private.”
[54] In Somaliland, the Constitution allows only three parties (UDUB, KULMIYE & UCID) : see Article 9 of the Constitution and the Registrations of Politically Associations and Parties Law.
[55] Article 15.
[56] Article 19(2) of the Law.
[57] Sedition is an act which tends to create a disturbance amongst the people of the nation.
[58] In my recommendations relating to the 2000 Bill (see www.somalilandforum.com), which, I understand, have been considered by the House of Representatives Elections Bill Committee, I suggested that only the police (and of course the courts) should have this power as the Chairman of the District Council or his party could indeed be standing in elections. It is encouraging, however, that there is an obligation on the Chairman of the District to come up with alternative place or time for the banned meeting or demonstration to take place.
[59] Arms are defined as firearms or ammunition, pointed and edged weapons used normally for offensive purposes and bombs or other explosive devices (Article 21).
[60] Article 42.
[61] That power is set out in Article 9(4)(c) of the Organisation of Judiciary Law 2004.
[62] Contraventions of Article 49 attracts six months prison or a fine of 1,000/-
[63] Article 51, the contravention of which attracts up to 6 months prison or fine of up to 1,000/-.
[64] Article 50 – the fine is 1000/- to 5.000/-
[65] See Article 520(2) of the Penal Code – the fine is from1,000/- to 5,000/-.
[66] Games of chances (or gambling) are, in any way, prohibited by the Penal Code (Article 553) in both public places or in private clubs. Article 556 defines such games as “those which are played with the object of gain and in which success or failure is entirely or nearly entirely dependent on chance.”
[67] The penalty is normally imprisonment for up to a year or a fine of 1,000/- to 10.000/-.
[68] Law No 37 of 2 June 1973, which came into force on 1 July 1973.
[69] Other bodies, which, under Article 52 have legal personality are the state, local government, public bodies and any other statutory bodies; Wakfs (religious trusts); Economic societies (now governed by the Somaliland Company Law and the Somaliland Trading Organisations Law); Foundations (Article 69) and groups of people forming an organisation by law (Article 80), such as benefit societies, co-operatives, trade unions etc.
[70] Both the Attorney General’s Office and the Regional Court have jurisdiction in dealing with disputes in such associations and in their dissolution.
[71] This issue has been of considerable concern to the Somaliland opposition parties who complained that in both the last two elections, the Government has monopolised the state owned radio and press.
[72] Law No 218 of 20/08/1963, which was superseded by Law on the Territorial Organisation of the State of 10/01/1967.
[73] Africa Watch (1990) Somalia a Government at War With its Own People, Africa Watch Committee, London., at page 46.
[74] The report added that the youths were sentenced under Public Order Law No 21 of 18 August 2000 (articles 2 and 40). I have checked this in an official list of laws passed by the House of Representatives and there was no such law listed in there.
[75] www.halgannews.com on 16 June 2004.
[76] At least two separate interviews with the Minister were reported in www.awdalnews.com on 30 May 2004, and in www.halgannews.com on 16 June 2004. The minister endorsed the role of the security committees.
[77] www.awdalnews.com on 30 May 2004.
[78] In Somali: ““Ma anaan rabin in mudo la sii hayo oo ay bilba ku gaadhaan ee waxay ahayd asluub iyo madax jabin, sidaas darteedna Gudida Nabadgelyadu waxay detention (xabsi gaaban) u dirtaa dadka rabshadaha noocaasa sameeya iyo kuwa daroogada qaata iyo caasi waalidaynka. Waanan sii daynay wixii arday ahaa, mana aha wax bilaa sharci ah ee sharciga ayay waafaqsan tahay oo nabada ayay sugayaan waanay iman doontaa maalin aan awood u yeelano in aan wax walba sugno oo qofkii wax sameeya maxkamad la geeyo.”
[79] Interview of the Somaliland Attorney General reported in the Somaliland Daily, HAATUF, on 4 June 2004.
[80] It is not clear which countries the Attorney General was referring to. Other some highly criticised detentions relating to anti-terrorism laws, no democratic country that I am aware of has committees consisting mainly of government officials detaining people and passing sentences of prison.
[81] In Somali: “ … dadka aan maxkamad waxba lagaga cadayn karin, denbi toos ah, laakiin wixii ay sameynayeen faraha kula jira. Sida sakhraamiinta, dadka rabashadaha sameeya, cuqaasha ama odayaasha laba qabiil hoosta iskaga diraya, kuwii is dilayayna aan ahayn, in lagu waabiyo oo sharcigaasi wuu jiraa, wuxuuna siinayaa sadex bilood oo xadhig ah..”
[82] The Attorney General may have been misquoted here as there are a considerable number of crimes defined in the Penal Code, which cover practically every situation, including public order, and all the scenarios mentioned in the Attorney General’s interview.
[83] This new Law was recently passed by both Houses to replace the 1993 Organisation of the Judiciary law.
[84] Article 13 of the Law.
[85] These are the Supreme Court (which also sits as the Constitutional Court and, in impeachment cases, as the High Court of Justice), the Appeal Courts, the Regional Courts and the District Courts. There also the Military courts which deal with criminal issues relating to the armed forces only under the Code of Military Criminal Law in Peace & War 1963 (Legislative Decree No: 2 of 1963)
[86] The author is Chairman of the Committee, but, as stated above, the views expressed in this article are entirely personal.
[87] No end date of the Order is given.
[88] These Articles refer to the 1997 Interim Constitution, and not the current one, which was adopted in 2000. All the provisions listed are, however, in the current Constitution, as well, but are numbered differently.