CHAPTER 9. THE JUDICIAL AUTHORITY
Article 105. The Judicial Authority of the Federal Republic of Somalia
- Judicial authority is vested in the courts.
- The judicial structure shall be regulated in a law enacted by the Federal Parliament.
Article 106. Judicial Independence
- The judiciary is independent of the legislative and executive branches of government whilst fulfilling its judicial functions. Members of the judiciary shall be subject only to the law.
- No civil or criminal proceedings shall be instituted against a judge in respect of the exercising of any judicial function.
- The home or person of a judge cannot be searched without the authorization of the Judicial Service Commission.
Article 107. Judicial Procedure
- Judicial proceedings shall be open to the public, but the courts may decide, in the interests of ethics, national security, the protection of witnesses, in cases involving juveniles, or concerning rape, that the proceedings be held in private.
- No judicial decision shall be made unless all parties have had the opportunity to present their case.
- Reasons shall be given for all judicial decisions.
Article 108. National Court Structure
The national court structure shall be of three levels, which are:
- The Constitutional Court;
- The Federal Government level courts;
- The Federal Member State level courts. The highest court at the Federal Government level shall be the Federal High Court, whilst the highest court at the Federal Member State level shall be the Federal Member State High Court.
Article 109. The Proceedings of the National Courts
- If a case is presented before a court, and the case concerns the Federal Government, the court shall refer the case to the Federal Government level court.
- If a case is presented before a court and the case concerns a constitutional matter, the court may refer the case to the Constitutional Court.
- Any court with judicial powers can decide on whether a matter brought before it is a constitutional matter or not, if this will not contradict the exclusive powers of the Constitutional Court, as stipulated in Article 109C of the Constitution;
- The Constitutional Court is the final authority in constitutional matters;
- The Constitutional Court shall have sole jurisdiction on matters of interpretation of the Constitution which have not arisen out of court litigation;
- Any Individual, or groups, or the government may submit directly to the Constitutional Court a reference application on matters concerning the public interest.
- Notwithstanding Clauses 1 and 2 of this Article, the Federal Parliament shall enact a law providing detailed laws for the interaction between the Federal Government level courts and the Federal Member States courts.
Article 109A. The Judicial Service Commission
- This constitution establishes a Judicial Service Commission.
- The Judicial Service Commission shall be comprised of nine (9) members, which shall be as follows:
- The Chief Judge of the Constitutional Court;
- The Chief Judge of the Federal High Court;
- The Attorney General;
- Two (2) people who are members of the Somali Bar, appointed by the Somali Law Society for a four (4) year term;
- The Chair of the Human Rights Commission;
- Three (3) people of high reputation within Somali society, proposed by the Council of Ministers, and then appointed by the President for a term of four (4) years, and renewable only once.
- The Judicial Service Commission shall elect a chair from amongst its members.
- The term of office for the members of the Judicial Service Commission is four (4) years, renewable only once.
- A disciplinary regulation passed by the Judicial Service Commission shall apply to all the members of the Judicial Service Commission.
- In accordance with a law and regulation formulated by itself, the Judicial Service Commission can do the following:
- Appoint, discipline and transfer any member of the judiciary at the Federal Government level;
- To decide on remuneration and pensions of members of the judiciary at the Federal Government level;
- To decide on other work matters of the judiciary.
Article 109B. The Formation of the Constitutional Court
- This Constitution establishes the Constitutional Court which is composed of five Judges including the Chief Judge and the Deputy Chief Judge.
- The Judicial Service Commission shall nominate as judge of the Constitutional Court only persons of high integrity, with appropriate qualifications in law and Shari’a, and who is highly competent in Constitutional matters.
- The Judicial Service Commission shall propose to the House of the People the person they want to be appointed as a Constitutional judge.
- If the House of the People of the Federal Parliament approves the name proposed in accordance with Clause 3 of this Article, the President of the Federal Republic shall appoint that Person as a judge of the Constitutional Court.
- From amongst their members, the Constitutional Court judges shall appoint the Chief Judge and Deputy Chief Judge.
Article 109C. The Powers of the Constitutional Court
- The Constitutional Court shall have the following exclusive powers:
- Upon request from a member of the Council of Ministers, a committee from either one of the Houses, or ten members of either House of the Federal Parliament, to review draft legislation, and determine its compatibility with the Constitution;
- To hear and decide cases as stipulated in Article 86 concerning challenges to the constitutionality of a law passed by the Federal Parliament;
- To hear and decide on cases resulting from matters stated in Article 109 (2) (c), concerning matters of interpretation of the Constitution not arising out of Court litigation;
- To resolve any disputes between the Federal Government and the Federal Member State governments, or among the Federal Member State governments;
- To hear and decide cases arising out of disputes between organs of the Federal Government, concerning their respective constitutional powers and duties;
- To hear and decide cases arising in terms of Article 92 concerning the impeachment trials of the President.
- The Constitutional Court shall determine the date from which the decision to void legislation shall come into effect.
- In the case of legislation held to be unconstitutional, except in terms of Paragraph (b) of this Clause, taking into account the effect of the decision on the date of invalidation on the stakeholders and other social interests, the constitutional court may declare the legislation invalid from the time of enactment, or from the time of the judgment, or, to enable appropriate action pending invalidity, from a date specified in the future.
- In the case of criminal legislation, if the effect of declaring the law invalid from the enactment date would be of benefit to a person who has been convicted through this unconstitutional legislation, the invalidity must be from the time of enactment.