Supreme Court & 2003 Election

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THE SOMALILAND SUPREME COURT AND THE PRESIDENTIAL ELECTIONS

By Ibrahim Hashi Jama
(This Article was written in June 2003 before the Supreme Court gave its decision on the final
outcome of the presidential elections)
Somalilanders everywhere are watching carefully the expected final declaration of the results
of the presidential elections, which shall be made by Supreme Court any day before 15 May
2003, when the term of the incumbent President, Mr Dahir Rayale Kahin comes to an end.
The reason why this august body has suddenly come into the limelight is the Somaliland
National Electoral Commission which conducted the first ever presidential elections in the
Republic of Somaliland on 14th April 2003 declared, albeit belatedly, on 19 April 2003, that
Mr Kahin has won the election by a margin of 80 votes. The Election Law (Articles 64 & 65),
however, states that this result is provisional and that, having considered any complaints
submitted to it within 20 days, the Supreme Court shall declare the final result. The main
opposition party, Kulmiye, which has already announced its dissatisfaction with the count,
has now submitted its complaints to the Court and, Mr Kahin’s party has also now raised its
own grievances. So the scene is set for this important drama so early in Somaliland’s
burgeoning democracy. But what do we know of this court, and how well equipped is it to
rise to this challenge?
Somaliland re-asserted its independence in May 1991[1] and started re-building its
institutions. Article 21 of the National Charter[2] adopted at the Borama Grand
Conference of the Somaliland Communities on 24 April 1993 confirmed that the Supreme
Court is the highest organ of the judiciary, and shall also serve as the Constitutional Court.
Article 23 stressed the independence of the judiciary and, in a difficult era, made it clear that
the decisions of the courts shall not be subject to review, other than by a higher court - an
unequivocal statement, which was not so explicitly repeated in the later Constitution[3]. The
1993 Organisation of the Judiciary Law retained the structure of the court system which
existed prior to 1991 and which consisted of three tiers, starting with the courts of first
instance, the District and Regional Courts, at the bottom; the Court of Appeal in the middle;
and the Supreme Court at the top. Under this Law, the Supreme Court was to consist of a
Chairman and four judges.
The Interim Constitution of the Republic which was adopted at the Hargeisa Grand
Conference in February 1997 laid down that the Supreme Court (which was also the
Constitutional Court) shall consist of at least 4 judges. The President can appoint the
Chairman of the Court subject to the confirmation of the both Houses of Parliament, and can
dismiss him with the written consent of the standing committees of both Houses (see Article
130). When the revision of the Constitution was being discussed in 1999/2000, the
Somaliland Forum were seriously concerned about the apparent ease that the Supreme Court
Chairman and judges can be removed from office, and in its formal comments, the Forum
stated the following[4]:

HARGEISA, SOMALILAND
0634429731 HTTP://DAWLEGAL.COM
 “We would like to see the independence of the Judiciary strengthened further and
deprecate any of the proposed changes that might affect this important principle. We
consider important that the Judicial Commission, which oversees the appointment and
removal of judges and procurators, should continue to be chaired by and include
Supreme Court justices and not a member of the Executive. We are aware of a number
of countries where the Executive is represented or chairs similar committees, but it is
unheard of for such committees not to include any judges at all. In any case, we have
opted for a high degree of separation of powers in our governmental institutions and
our Judicial Commission ought to be, therefore, independent of the Executive and their
decisions must not be overruled by the latter. We also believe that security of tenure is
the cornerstone of the independence of judges. It is a matter of serious concern that
justices of the Supreme Court and other judges can be removed from office so easily.
Judges (especially senior ones) are normally appointed (where they are not elected) to
secure positions and are only removed either for mental or physical incapacity or
misbehaviour, or if they have reached their retirement age. Provisions setting out
security of tenure are in most constitutions and go back to the British Act of Settlement
1701 which set out that judge’s commissions were to be made quamdis se bene gesserint
(so long as they behave themselves), “but upon the address of both Houses of
Parliament it shall be lawful to remove them” i.e., they could only be removed for
misbehaviour. An example of a modern Constitutional provision in Africa is section 98
of the Constitution of Zambia, which sets out a retirement age for Supreme Court and
High Court judges of 65 years and notes that he or she may only be removed from
office, but after a tribunal investigation, only for inability to perform the functions of
the office, whether arising from infirmity of body or mind, incompetence or
misbehaviour. Even the Somalian Constitution included an article (96(3)) which made
it clear that judges “shall not be removed or transferred except in the cases specified by
law.” Our Supreme Court is also the Constitutional Court and will have to make
important decisions relating to the constitutionality of governmental action, and, in
due course, may also have to adjudicate on electoral matters. Judges ought to be able to
exercise their judicial functions without being subject to the capricious power of the
Executive. In this respect, we are surprised at the proposal to reduce the legal
experience required for appointment to the Supreme Court (from the current
requirement of 20 years to 5 years - see article 130 and the new article 82), and we are
concerned about the effect that this may have on the quality of the appointees.”
When the final revised Constitution was adopted on 30th April 2000, it stated that the
Supreme Court shall consist of the Chairman and at least four judges and that the President,
in consultation with the Judicial Commission, shall nominate the Chairman and the judges
of the supreme Court and the nominations shall be subject to confirmation at a joint sitting
of both Houses within three months. The President may relieve the Chairman of the Court
of his duties, but this will now require the approval of both Houses (Articles 101 and 105). It
is a matter of regret, to this author, that the dismissal of judges of the Supreme Court was not
added to this Clause so that this also required parliamentary approval. The requisite legal
experience for appointment to the Court was also reduced from the daunting 20 years to 10
years.
The last change was made because of the difficulties of getting candidates who can meet the
required qualification relating to experience, but, to some extent, the other changes were also
brought in to address some of the issues surrounding presidential appointments to the Court

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during the late President Egal’s regime. President Egal’s numerous appointments and
dismissals of Chairmen of the Supreme Court were a matter of considerable concern to the
Parliament. An illustration of this matter were the “boomerang” appointments of Mr Osman
Hussain Khayre (Shunu). Osman Shunu served as Chairman of the Supreme Court until
1998 when the President decided to dismiss him without getting the approval of the Standing
Committees of the two House as the Constitution demanded, at that time. The President
then proposed to nominate Osman Shunu to the office of Attorney General, but the House of
Representatives which needed to confirm the appointment within 3 months under Article
114 of the then Interim Constitution refused to do so. Later in December 2000, the President
decided to dismiss the then Chairman of the Supreme Court, Mr Mohamad Haji Said Aw
Abdi (allegedly because of the Courts ruling on the case concerning some TOTAL[5] ex-
employees), again without the approval of the two standing committees, and re-appointed
Osman Shunu in January 2001 to the office of Supreme Court Chairman. The appointment
was never ratified by the two Houses, but Osman Shunu remained acting Chairman for well
over a year until 26 January 2002. The appointment was repeatedly renewed by the President
every three months.
The dismissal of Chairman Mohamad Haji Said did not pass without any problems, as it was
widely believed to have been linked to the Court upholding a lower court’s decision to award
substantial damages to former employees of the Oil importing firm TOTAL. The President
in fact issued, on 4 November 2000, a decree setting aside the decision and forwarded to
Parliament a Bill setting up a Committee of the House of Elders which can act as review
body[6] for the decisions of the Court relating to civil matters[7]. The Bill was
understandably rejected by the House of Representatives (with a vote of 26 against, 4 for and
16 abstaining). Indeed all this formed the basis of one of the Articles of Impeachment in
July 2002, when 36 members of the House of Representatives put down a motion to
impeach President Egal. Article 1(1) of the motion alleged presidential interference in the
independent judiciary and cited, among other things, the removal from office of Chairman
Mohamad Haji Said and the overturning of the Supreme Court decision. Incidentally the
motion was defeated by one vote (36 for and 37 against).
With the sudden death of President Egal, the new President, Mr Dahir Riyale Kahin
appointed Judge Said Farah Ahmed as the new Chairman of the Supreme Court in mid June
2002, and on 7th August 2002 the appointment was confirmed by both Houses on a vote of
117 for, none against, and 4 abstaining. The Houses were informed that Mr Said Farah
Ahmed had experience as a judge in neighbouring Puntland. In June 2002, the President also
appointed a new Advisory Committee on the Judiciary (Guddida Xalinta Arrimaha
Garsoorka Maxkamadah, literally, “the Committee for the Resolution of Judicial/Court
Affairs”, which was almost immediately criticised as being unconstitutional by six serving
judges (who later resigned). There is of course nothing wrong with the President listening to
advice from any quarters, but the only committee he is obliged to consult on judicial
appointments is the Judicial Commission, which is a body set up under Article 107 of the
Constitution and consisting of the Chairman of the Supreme Court, two Supreme Court
Judges, the Attorney General, two high ranking Civil Servants[8] and four members from
the two Houses of Parliament. It was surprising, however, to see in the Presidential Decrees
14/2002 and 15/2002 of 29th June 2002, which made considerable changes in judicial
appointments, that the advice of both the Judicial Commission and that of the new Advisory
Committee were equally acknowledged in the preamble to the decrees.

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As part of extensive changes in the judiciary made on 29th June 2002, the President dismissed
the remaining four members of the Supreme Court and appointed the following six new
judges (Decree No:14/2002 of 29 June 2002):
1. Abdirahaman Yusuf Ainaan
2. Skeikh Ali Abdi Gulaid
3. Osamn Ismail Ahmed
4. Abdiqadir Omer Dulaeh
5. Mohamed Omer Gelleh
6.Yasin Hasssan Ismail
An Editorial in the English Language Weekly, The Somaliland Times[9], Issue 25 of 6, 2002,
commented as follows:
“For many years now, this country’s Judiciary system has been the target ofuniversal
criticism and condemnation by all Somalilanders. Chronically corrupt and grossly
under-qualified Judges, coupled with frequent interventions by the Executive Branch
in the Judiciary process, have effectively reduced Somaliland courts to an open market
where Justice is sold to the highest bidder. Thus the overwhelming support with
which Somalilanders have so far greeted President Rayale’s decision, last Sunday,
whereby the entire membership of the Supreme Court has been sacked and replaced
by a new one. In fact, Somalilanders have been treating the judicial system with so
much disdain that they sighed with relief, when 5 regional court judges and one
district court magistrate later resigned reportedly while protesting the summary
dismissal of their colleagues at the Supreme Court.”
The paper added that the key factors for ensuring restoration of integrity, fairness and
effectiveness of the justice system were the raising of the salaries of judges, the cessation of
the Executive’s intervention, the introduction of clear and improvements in the training of
judges.
Turning now to the work of the Court, the 1999 UNDOS study of the Somaliland
Judiciary[10] reported that the Court consisted, at that time, of the Chairman, a Deputy
Chairman and five other judges. All the judges were graduates of “reputable universities such
as SomaliaNational University or Al-Azhar University” and have a proven track record in
judicial matters. The Court was divided into five sections:
1. Civil and Labour Section.
2. Personal Statute Section (dealing with family law, succession etc).
3. Penal Section.
4. Administrative Section.
5. Constitutional Section.
A full bench normally tries matters which are considered by the Chairman as being of
particular importance and issues relating to elections are likely to fall within this category.
UNDOS has, however, commented that as there has never been a functioning Constitutional
Court in Somalia, the judges were not confident in constitutional matters and no such cases
have been heard so far. That was in 1999, and since then, at least, one case has been heard by
the Constitutional Court recently. That case was a petition brought by Ms Fawsia Yusuf H
Adan and Others, who challenged the ban under the electoral laws of independent

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presidential candidates who are not put forward by the three political parties. The petitioners
argued that Article 22 of the Constitution gave every citizen the right to vote and to be
elected to an office; that Article 83(4) simply stated that the candidate with the highest
number of votes wins the presidential elections and that, as the Constitution is highest law of
the land, these right cannot be restricted. It is certainly correct that the important civil right
to stand for election has been curtailed, but Article 22 of the Constitution which sets out this
right is prefaced by the phrase “every citizens, who fulfils the requirements of the law”. The
Constitution, therefore leaves to the law the details of these requirements and eligibility
issues, based on age, deposits, minimum number of supporters etc are often set out in
electoral laws for both administrative and practical reasons. The relevant law in our case
includes Article 35 of the Elections Law which states that “candidates standing for election to
the offices of President and Vice-President must be members of and be nominated for
election by an association/party which has been registered[11] or approved”. This is, of
course linked to Constitutional limit of three parties under Article 9(2), which does of course,
limit the constitutional rights to stand for election under Article 22 and the right of
association under Article 23. Although I have still my own misgivings about this artificial
limit, the reason for it was the Somaliland people’s desire not to go back to the chaotic free
for all clan-ridden elections[12] of the 1960s. Many Constitutions or Bill of Rights have
provisions which explain the extent of limitations that may be imposed on the rights set out
therein. For example, section 1 of the Canadian Charter[13] states, “The Canadian Charter
of Rights and Freedoms guarantees the right and freedoms as set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified[14] in a free and
democratic society”. But no limitation must negate the essential content of the right in
question and hence the core element of the basic right must not be encroached upon. Whilst
I have not seen the reasoning of the decision of the Supreme Court on this issue, it was not
surprising that it was reported in late February 2003 that the Court dismissed the petition.
The Supreme Court’s decision-making in constitutional and administrative issues is going to
be of critical importance to the development of our young democracy. At a time when the
unelected Houses are not always as effective as they ought to be in checking the often
rapacious powers of the Executive, the Court could play an essential role in safeguarding the
rights and freedoms of individuals and groups if the public become confident in its
impartiality and efficiency. The considerable changes made in the personnel of the judiciary
last year by President Dahir Riyale Kahin were, by and large, very widely welcomed, but it is
important that the Supreme Court works hard to gain the confidence of the populace in all its
work.
It is perhaps apposite to note that pre-Dictatorship Supreme Court of Somalia, which in the
early/mid 1960s handed down a number of far reaching decisions relating to the 1964
elections, did a u-turn in the 1969 elections and decided that as the Constitutional Court
under the then Constitution of 1961 was not properly set up, it had no jurisdiction[15] to
deal with some of the elections cases. The Court was by then presided, by a Somali judge[16].
Commenting about 1969 elections, Samater wrote[17] that
“the first institution to show signs of the atrophy which had already afflicted the
political parties was the Supreme Court. In the days following the election about 47
petitions, all challenging election results, were refused hearing by the Court on the
technical grounds that it lacked authority to intervene in such matters. Whatever
the merits of the cases, the court’s action smacked of interference by the government,

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 and caused a corresponding amount of bitterness and disrespect for national
institutions”
Yet a few years before that, the Court accepted[18] jurisdiction under its general power to
review administrative decisions so long as the petitions were submitted by persons who had a
direct and real interest in the decision by the Electoral Committees. Those who were held to
have real interest were usually defeated candidates, rather than the officials of the Party
concerned.
An example of one of the cases dealt with by the Supreme Court in 1964 was the case of Haji
Mohamad Hussein and Others (Judgment delivered on 9/07/1964 by Guiseppe Papale,
Acting President). Briefly, the Chairman of the Electoral Central Office set aside the
elections held in the whole district of Merka on the ground that there had been, as
ascertained, alteration of the results of the voting in one of the polling stations. The evidence
taken on oath by the Attorney General indicated that the total number of persons who voted
there was 395 (and not 695) as shown in the records, and that the valid votes were 375 (and
not 675). Consequently, the votes cast for SYL were only 62 (and not 362), with (out of the
remaining 5 parties), SNC gaining the highest number of votes of 294. The petitioners
complained that the Electoral Office Chairman had no power to set aside the whole elections
of the district. In overturning the decision of the Electoral Office, the Supreme Court stated
that the Electoral Office had no other power under the law, save to correct the results of the
counting by subtracting the 300 invalid votes and allotting the seats to the appropriate
winning parties. Setting aside the whole Merka elections meant making invalid over 20,000
votes, the validity of which were not questioned. The Court therefore directed that the
Electoral Office implement its decision with two days, and the outcome was that one seat was
assigned to the SNC Party and another to the SDU Party[19].
Commenting on this power of the Supreme Court to review administrative decisions and, in
hindsight, speaking too early, Mr Justice N A Noor Muhammad wrote[20] that the Supreme
Court
“has risen above party or political considerations and has not hesitated to annul the
acts of the administration where it found that they were contrary to the law. The
impartiality of the court and the readiness on the part of the administration to carry
out the directives of the Supreme Court are indeed the sine qua non of the rule of law
in a free society.”
By 1969, and before the onset of the dictatorship, the Somali Republic Supreme Court fell
very much below these lofty heights, and by mid 1970s, when I practiced law in Somalia, the
Supreme Court building was where all the Ministry of Justice headquarters staff and lawyers
who were housed next door to the Court building, and all the judges and prosecutors from
the nearby local courts and the Attorney General’s Office, were made to congregate once
every week in its hallowed hall to be given “orientation lectures” about Siyad Barre sayings.
We have, off course, learnt some of the lessons of history and the Somaliland Supreme Court
was assigned very early on to be the Constitutional Court, without any other
modifications[21]. There is no question, therefore, of the Court divesting itself of this
power. The Elections Law[22] sets out the Court’s role with regard to the presidential
elections as follows:
“Article 64: The Declaration of the Result of the Presidential Elections

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 When the Chairman of the Commission receives from the district and regional
electoral offices (all the written records), he shall:
a) reach decisions about the claims relating to the voting and the count;
b) count and add up (arithmetically[23]) the valid votes and the incorrect or invalid
votes, which have been forwarded by the regional electoral offices;
c) having confirmed fully and being satisfied that the (election) activities have been
conducted properly, declare the provisional results of the elections of the President
and the Vice-President.
Article 65: Elections Claims
1. The Supreme Court shall have (the sole) jurisdiction to deal with claims relating to
the elections of the President and the Vice-President. These claims must reach the
Court office within 20 days beginning from the date when the election results are
declared. No late claims shall be considered.
2. On receipt of the written records from the district and regional electoral offices
and from the central office of the Commission, and having checked that the elections
have been conducted properly in law and in the way the calculations were done, the
Supreme Court shall declare the result of the election of the President and the Vice-
President.”
Before I look at the Court’s role in this election, it should be noted that under Article 58 of
the Elections Law, each Regional Electoral Office which is expected to receive a copy of the
written records of each polling station, as well as the total results of the votes as declared by
the districts in the region and the total votes cast for each party as forwarded by the District
Electoral Offices of the region, shall check the calculations of the results of the total votes in
its region. The Chairman of the Regional Electoral Office should then make a written record
of this task in the appropriate form in triplicate, and forward two copies to the Central
Electoral Office (the Commission) and the original record to the Supreme Court. So even
before the Electoral Commission declares the provisional vote, the Supreme Court should
have the original records from all the regions.
The task facing the Court under Article 65 of the Elections Law is therefore four fold:
1. To check that the elections have been conducted properly in accordance with the
law.
2.To reach final decisions about any complaints.
3. To satisfy itself that the calculations have been carried out correctly.
4. To declare the final results.
I would only comment on the first two tasks which are, to some extent interlinked. Checking
that the elections have been conducted properly involves an examination of all the reports
submitted and the decisions made by all the Electoral Offices from the polling station
through to the District, Regional and national offices. The Law lays down the powers and
duties of all these offices and it is up to the Court to satisfy itself that they have exercised
these in accordance with the law. Clearly this is limited to an examination of the records, but
a main area of the Court’s interest will be the decisions made by each office, and particularly
by the Central Electoral Office (the Electoral Commission), which would have already
reviewed the decisions of all the other offices. The powers and duties of the Central Electoral

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Office (or the Electoral Commission) are set out in the various Articles of the Elections Law,
and as far as the final stages if the election are concerned, these are set out in Article 64
(above). Briefly, the Commission is charged with the task of reaching final decisions about all
the complaints relating to the voting; totalling up all the regional returns and satisfying itself
that all the election activities have been conducted properly and in accordance with the law.
In turn, the Supreme Court’s task under Article 65 of the Elections Law is broadly similar,
but it has the added task of considering any further relevant complaints submitted within 20
days of the declaration made by the Electoral Commission.
When examining the decisions of the Electoral Offices (including the Commission), the
Court will not only be looking as to whether any obvious errors have been made, but will also
be examining whether any of the decisions or actions taken by the Commission strayed
beyond their powers and duties under the Law. It is hoped that the Court will be guided by
the modern concepts of judicial review, rather than the Italian based administrative actions,
which judges who were educated at the Mogadishu Law Faculty and may more familiar with,
and which have been broadly limited[24] to lack of jurisdication (incompetenza); excess of
power (ecceso di potere) and violation of the law (violazione di legge). Briefly, and
borrowing from the growing British judicial review law[25], the three main issues the Court
should consider are:
a) Illegality - whether the Commission/electoral offices understood the law that they
were implementing and gave effect to it, at all stages. This also includes the way the
Commission/electoral office(s) have exercised their discretion, as they ought not to
have fettered their discretion unduly, nor delegated their decision-making powers to
anyone else.
b) Procedural impropriety - covering the standards the Commission/electoral offices
ought to have adhered to, such as the duty to give a fair hearing to everyone affected
by their decisions; duty to be free of bias; and an obligation to act in the way they said
they would act if this has created a legitimate expectation.
c) Irrationality - acting in a reasonable way so that a decision is not one which is so
outrageous in its defiance of logic or of accepted moral standards that no sensible
person who has applied his mind to the question to be decided could have arrived at
it[26].
I shall make no comments on the substantive issues of this matter, as I am neither privy to
the details of the complaints, nor would I want to pre-empt the decision of the Court. It is
hoped that the decision of the court would be well reasoned and would add to the law and
practice in this area and strengthen our democracy. Widner [27] stresses that:
“ courts can enhance the levels of public contestation and inclusiveness of
participation in political processes, as well as help to implement democracy as a set of
everyday practices. The most direct impact on democratic culture may reside in
reviewing the administration of elections. This extends from thecounting of ballots to
the fairness of campaign practices. Inability to handle challenges expeditiously can
undermine the legitimacy of new governments and sow the seeds of deep division.
Courts have leveled the playing field among contenders for public power by
upholding rules that support free and fair elections.”
Whatever decision the Somaliland Supreme Court reaches, it is hoped that it will keep in
mind the levelling of the playing ground for everyone and would not shirk from the difficult

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tasks that face it. The Court may well also be dealing soon with the constitutionality of the
recent extension of the term of office of the House of Elders, but the question that many
Somalilanders will be asking is: Is the Court going to act like the Supreme Court of Judge
Muhammad Noor or will it be like that of Judge “Buur Hakaba”?
© Ibrahim Hashi Jama April 2003

[1] Somaliland was an independent country, known as the State of Somaliland, before
joining former Italian Somalia on 1 July 1960. That union was dissolved in May 1991.
Somaliland fulfils all the criteria for statehood, but is still awaiting international recognition.
[2] The Charter (Axdiga Qaranka) remained in force until February 1997 when the interim
Constitution was adopted.
[3] Article 97(2) of the current (revised) Constitution states that the Judiciary shall be
independent of the other parts of state (i.e the Executive and the Legislative).
[4] See: www.somalilandforum.com . I served as the Chair of the Forum Somaliland
Constitution Committee, which prepared the extensive comments on the proposed changes.
We were pleased to learn that our comments were considered by the House of
Representatives.
[5] There were earlier allegations about the President signing a preferential agreement with
this company, without informing the House of Representatives about its details.
[6] Hence the significance of the Article 23 of the National Charter!
[7] The proposed review powers were confined to civil matters, because, in effect, the
President has already the power under Article 90 of the Constitution to issue pardon (or
indult) and amnesty in criminal matters. This is backed up by the provisions of the Somali
Penal Code which extinguish the offences or punishment in these cases - see: Article 144
(Amnesty) and Article 149 (Indult and Pardon). I am not aware of any objective guidelines,
which govern the exercise of these presidential powers, but Indult, which covers impersonal
categories of offences/punishment has been used at Eid occasions, and the more
problematical pardon, relating to individuals has been used selectively, during the last few
years.
[8] The Director General of the Ministry of Justice and the Chairman of the Civil Service
Commission.
[9] For online copies of the paper, see www.somalilandtimes.net
[10] UNDOS (1999) Assessment of the Judiciary System of Somaliland, UNDOS, Nairobi
[11] This was a badly drafted clause (questioned, understandably, by the petitioners). By the
time the Presidential Elections were due, only three parties remained registered under the
Political Parties Law as the three national parties accepted under the Constitution. These
three parties were the ones which came top in the first nation-wide local elections held on 15
December 2002 - see the Regulation of Political Associations & Parties Law (as amended),
Law no 14/2000.
[12] The last democratic elections in Somalia was in 1969, when 123 seats of parliament were
contested by 1,002 candidates from no less than 62 parties
[13] Constitution Act, 1982, pt. 1: (Canadian Charter of Rights and Freedoms)

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[14] The test used by the Canadian Supreme Court in the case of R v Oakes [1986] 1 S.C.R
103 was “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. 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.”
[15] See Lewis, I M (2002) A Modern History of the Somali, James Curry, Oxford at page
205.
[16] The Court was then presided by a lawyer of Somaliland origin, Judge Abdirahman
Sheikh Ali Said, who was nicknamed “Bur Hakaba” after the southern town which was the
subject of one of the election cases.
[17] Samater A. I (1988) Socialist Somalia Rhetoric & Reality, Zed Books, London.
[18] The judgement were issued by Judge Haji N A Noor Muhammad, for example on
2/07/1964 on cases relating elections in Hargeisa (SNM party) and Odweine (SDU party).
Judge Noor Muhammad was the judge who was an expert on Somaliland laws.
[19] This case resulted in the seat being won by Haji Muhamad Hussain, the Leader of the
opposition Somali Democratic Union (SDU) - see Contini P (1969) The Somali Republic An
Experiment in Legal Integration, Frank Cass & Co Ltd, London, p. 86
[20] Noor Muhammad, N.A, Judicial Review in Somali Republic, (1966) Journal of African
Law, Vol. 10. No. 1, p. 9 - 20
[21] In 1960 to 69, the Constitutional Court was never set up and was supposed to consist of
not only all the judges of the Supreme Court, but also two members appointed for three
years by the President and two members elected for the same period by Parliament- see
Article 99 of the Constitution of the Somali Republic. Of course, no such court was set up by
the Dictator even though Article 107 of his 1979 Constitution stated that such a court shall be
composed of the Supreme Court along with, an indeterminate, number of members from
the People’s Assembly appointed by the President.
[22] The Presidential and Local Council Elections Law (Law no: 20/2001).
[23] This phrase, which appears in parenthesis in the Somali text, is presumably used to
emphasise that the job involves calculating the sums only and not re-counting the actual
votes.
[24] These have been the traditional grounds on which administrative action in Somalia was
challenged in the 1960s.
[25] See for example the House of Lords decision of R v Minister for the Civil Service ex p
CCSU [1985] A C 374.
[26] Per Lord Diplock in R v Minister for the Civil Service ex p CCSU [1985] A C 374. This
test is also known as “Wednesbury unreasonableness” after the House of Lords case of
Associated Provincial Picture House v Wednesbury Corporation[1948] 1 KB 223.
[27] Widner J, Courts and Democracy in Post Conflict Transitions: A social scientist’s
perspective on the African Case, the American Journal of International Law Vol. 95, p64

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