Somalia Civil Procedure – anfac law firm

Before the advent of colonialism, Somalia’s civil procedure was deeply rooted in its customary law system, known as “Xeer.” Xeer was an unwritten code established by traditional elders and passed down through generations. It governed a wide range of issues including marriage, property disputes, and compensation for injuries. The process under Xeer was highly communal and focused on reconciliation rather than punishment, emphasizing the restoration of social harmony within clans and communities.

The history of the Somali Civil Procedure Code reflects the tumultuous legal and political history of Somalia. The code was enacted to provide a comprehensive framework for the administration of civil justice in the country. Here is an overview of its development and historical context.

Colonial Period

Pre-Independence and Colonial Influence

Before Somalia’s independence in 1960, the legal system was influenced by a mix of traditional Somali customary law (Xeer), Islamic law (Sharia), and colonial legal systems. Northern Somalia (modern-day Somaliland) was a British protectorate, while Southern Somalia was an Italian colony. Each of these regions developed legal systems influenced by their respective colonial rulers.

Post-Independence Period (1960s)

After gaining independence in 1960, Somalia unified the British and Italian territories, leading to efforts to create a cohesive national legal system. The Somali Civil Procedure Code (CPC) was enacted in this period, coming into effect in 1962. The code aimed to streamline civil litigation procedures and was influenced by both civil law traditions, particularly Italian law, and Somali customary practices.

Military Regime (1969-1991)

The rise of Siad Barre’s military regime in 1969 marked a significant shift in Somalia’s legal landscape. Barre’s government sought to centralize and modernize the legal system, introducing various reforms. However, the civil procedure code largely remained intact during this period. The regime attempted to blend traditional, Islamic, and modern legal principles, but the administration of justice often became politicized and subject to executive influence.

During the late 19th and early 20th centuries, Somalia was divided into several colonial territories under British, Italian, and French control. Each colonial power introduced its legal systems and procedures:

British Somaliland (1884-1960): The British applied a dual legal system combining local customary laws with British common law. Civil matters involving Somalis were generally handled under customary law, while those involving foreigners or serious offenses were dealt with under British law.
Italian Somaliland (1889-1960): The Italians imposed a more centralized legal system, which included the codification of laws and procedures modeled after the Italian legal system. This system was more formal and bureaucratic, contrasting with the flexible and consensus-driven Xeer.
French Somaliland (Djibouti, established in 1896): Although not part of present-day Somalia, the French influence extended over Somali-inhabited regions, introducing elements of French civil law.

Post-Independence Period (1960-1991)

When Somalia gained independence in 1960, the newly formed government aimed to unify and modernize the legal system. The Somali Civil Procedure Code, enacted in 1973, was a significant milestone in this effort. This code was influenced by both civil law traditions and Islamic principles, reflecting Somalia’s unique legal heritage. It aimed to provide a coherent framework for civil litigation, covering jurisdiction, procedures, and the enforcement of judgments.

During this period, the Somali legal system also saw the integration of Islamic Sharia, particularly in matters of personal status, family law, and inheritance. The blending of civil, customary, and Islamic laws aimed to create a comprehensive legal system responsive to the country’s diverse cultural and religious context.

Civil War and Legal Fragmentation (1991-Present)

The outbreak of the Somali Civil War in 1991 led to the collapse of the central government and the disintegration of the formal legal system. As a result, different regions reverted to traditional and informal systems of dispute resolution. The Xeer system regained prominence in many areas, complemented by Sharia courts, especially in regions controlled by Islamist groups.

Several regional administrations, such as Puntland and Somaliland, established their judicial systems, blending elements of the pre-war legal framework with local customs and Sharia. These regional systems function with varying degrees of effectiveness and legitimacy, often depending on the local political and security situation.

Recent Developments and Challenges

Since the establishment of the Federal Government of Somalia in 2012, efforts have been made to rebuild the national judicial system. These efforts include:

Legal Reforms: Initiatives to revise and update the Somali Civil Procedure Code and other legal frameworks to align with international standards and address contemporary needs.
Capacity Building: Programs aimed at training judges, lawyers, and other legal professionals to enhance their skills and knowledge.
Institutional Strengthening: Efforts to rebuild court infrastructure and improve access to justice, particularly in rural and conflict-affected areas.

However, significant challenges remain, including ongoing insecurity, lack of resources, and the need for greater harmonization between the formal legal system, customary laws, and Sharia. The interplay between these different legal traditions continues to shape the evolution of civil procedure in Somalia.

Conclusion

The history of civil procedure in Somalia reflects the country’s complex legal heritage, shaped by customary practices, colonial influences, and efforts at modernization. Despite the disruptions caused by prolonged conflict, there are ongoing efforts to rebuild a unified and effective judicial system that respects Somalia’s diverse legal traditions.