Case Study: Somalia and the Antipiracy Law
This case study explores some of the challenges of drafting and passing legislation.
READ THE FOLLOWING CASE STUDY AND CONSIDER THE FOLLOWING QUESTIONS IN LIGHT OF THE GOOD PRACTICES IN LAW REFORM DESCRIBED IN PART 5:
• What were the positive aspects about the approach taken to the drafting of the antipiracy law?
• What would you have done differently and why?
B A C K G R O U N D : Piracy off the coast of Somalia began in the early 1990s, said to have grown out of Somali fishing communities acting to defend their coastal waters from foreign fishing boats and illegal toxic waste dumping. With no central government (following the overthrow of the dictator Siad Barre in 1991), piracy flourished. In 2007, piracy attacks against humanitarian ships, including World Food Programme vessels, attracted international attention to this problem. International demands were made for pirates to be brought to justice, but legal challenges hampered the effectiveness of states to prosecute detained suspects. UN Security Council Resolution 1851, which addresses piracy off the coast of Somalia, notes that “the lack of capacity, domestic legislation, and clarity about how to dispose of pirates after their capture, has hindered more robust international action against the pirates off the coast of Somalia and in some cases led to pirates being released without facing justice.”7
Following the overthrow of Siad Barre by armed opposition groups in 1991, Somalia plunged into civil war. Today, Somalia is generally considered to be a failed state.
It operates as three separate administrative entities: South Central Somalia, home of the UN-backed Transitional Federal Government (TFG), Somaliland, and Puntland.
Somaliland and Puntland declared their autonomy and established their own regional administrations in 1991 and 1998, respectively. Puntland is semiautonomous and Somaliland is a self-declared independent state. Both regions have achieved a measure of stability within the Somali territory, including the establishment of functioning formal judicial systems in both regions. In South Central Somalia, the government is still struggling to rebuild its public institutions.
In March 2010, the UNODC, at the request of the Somali TFG government, hosted a five-day meeting in Djibouti for three delegates each from the TFG, Puntland, and Somaliland. The delegates included chief justices and/or senior justice sector stakeholders.
The purpose of the meeting was to address the gaps in the domestic legislative framework regarding the crime of piracy. There was no crime of piracy in the Somali Penal Code of 1962; the Maritime Law of 1959 failed to address the modern case of piracy or the UN Convention on the Law of the Sea (UNCLOS) definition (Somalia ratified the UNCLOS in 1989); and a 1975 law criminalizing kidnaping was passed during the time of the Siad Barre military regime, and was seen to be excessively harsh and illegitimate because it was introduced during a period of dictatorship.
The delegates reviewed the UNCLOS definition of piracy, and an antipiracy law passed by the Seychelles in early 2010. They raised the point that their communities were concerned not only with the crime of piracy but also with illegal fishing, waste dumping,
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and pollution. Indeed, many communities were benefiting significantly from the millions of dollars paid to the pirates in ransom for ships taken hostage. However, ultimately, the delegation agreed to prepare a draft law that addressed only the crime of piracy, given the urgency of the issue and the considerable international pressure. The draft law replicated the Seychelles law, which was seen as being simple, easily understandable, and more lenient than the existing Somali kidnapping law.
The delegates returned home with a copy of the draft law to table in their respective parliaments.
In South Central Somalia, the TFG parliament rejected the draft law for two main reasons. One was a concern about how to address the issue of repatriation of Somalis who had claimed refugee status after being captured by foreign naval vessels (the principle of non-refoulement in international refugee law prevents refugees from being returned or expelled to a place where their lives could be threatened). The second reason was that members of Parliament were angry that the minister presenting the draft had not consulted with their parliamentary committees before tabling the draft law.
In Puntland, the draft law was amended by parliamentarians to also address the issue of illegal fishing. The revised law was passed by Parliament; however, the amendments meant the law was now inconsistent with the UNCLOS definition of piracy. After discussions between UN representatives, the Speaker of Parliament, and the government focal point for piracy crimes, the law was repealed. A separate law addressing illegal fishing was drafted and passed, and the draft piracy law was passed in its original form.
In Somaliland, parliamentarians were pleased that the draft law was based on the recently adopted Seychelles antipiracy law rather than being a TFG-drafted law, which they would have rejected. The law was passed and a piracy committee was established to oversee the Somaliland government’s response to the threat of piracy.
The piracy law introduced a new crime of piracy into the Somali legal system, but it did little to address other challenges, such as the failure of foreign naval forces to coordinate with local police and judiciary (pirate suspects are handed over to local authorities without any evidence and ultimately must be released); communities believe the naval forces are protecting illegal fishing boats and are concerned that waste dumping persists and is destroying their fishing zones; and judges are frequent targets of revenge killings. No steps have been taken to provide judges with security or protection when hearing piracy cases. As one Somali expert noted, the main purpose of the draft piracy law was “to fix the problem but not to solve it.”
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In 2006, the Maldives government announced a “Roadmap for Reform” that included a new constitution and the codification of the penal code. The president of the Maldives approached the United Nations for assistance with reforming the penal code. The United Nations then requested Professor Paul Robinson, a law professor at the University of Pennsylvania, to conduct an assessment of the country’s criminal justice system.
The assessment found that the statutes related to criminal law and procedure were scattered and incomplete, and many of the relevant rules, particularly related to criminal procedure and evidence, were not codified.
Courts relied on Shari’a principles where the statute law was silent, but these principles were unwritten and not consistently interpreted or applied.
The assessment found that there was a need for a penal code that could be uniformly applied (ensuring transparency and predictability in the delivery of justice) and understood by everyone.
The Attorney General’s office took responsibility for coordinating the work between the Criminal Law Research Group (CLRG) (comprising Professor Robinson and his students), the Advisory Group (composed of a broad cross-section of criminal justice stakeholders, including the chief justice, the chairman of the Supreme Council of Islamic Affairs, other high-ranking members of the government, opposition ministers, religious scholars, and judges), and the Core Group (composed of local legal experts on Shari’a and the Maldivian legal tradition), which together guided the drafting process.
The CLRG consulted with local judges, prosecutors, defense lawyers, government officials, and ordinary citizens to determine community values and principles. The group consulted with members of the Maldivian legal community and the Attorney General’s office in order to map the current judicial practice. Finally, the CLRG consulted criminal codes of other Muslim countries to understand how those countries incorporated Shari’a principles into their respective penal codes.
The drafting of the Draft Maldivian Penal Code took approximately one and a half years. As the CLRG prepared each new draft, the Core Group reviewed it and made suggestions for revisions. These consultations were conducted in person and via conference calls. One key challenge for the drafters was how to merge three sources of legal authority—statutes, Shari’a, and shared Maldivian norms and community values.
In many cases, existing statute law deviated from strict interpretations of Shari’a. For example, the law does not punish theft with amputation of the offender’s hand or apostasy with the death penalty. In these cases, the two groups agreed to follow the statute law.
Where there were disagreements between Islamic legal scholars over how to interpret passages of the Qur’an and over which authorities (e.g., hadith, analogies, etc.) to follow, the drafters generally referenced prevailing Maldivian norms, adopting that interpretation that seemed to best reflect the views of current Maldivian society.
A Process Approach to Reforming the Maldives Penal Code
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The draft penal code bill was prepared and submitted by the CLRG to the government: the People’s Majlis. The draft identified for the Maldivian lawmakers a series of issues that required full debate. The draft would in certain cases provide a range of alternative language and would provide arguments for and against each option. This allowed the lawmakers to make a fully informed decision about the issue being debated. The bill was passed by the People’s Majlis in April 2014, eight years after the CLRG submitted the final report to the government. As Professor Robinson noted, criminal codes are an enormous task for any legislature, and criminal justice reform anywhere takes many years.
One criticism that Professor Robinson faced was whether a non-Muslim, non-Shari’a expert should lead the drafting process. The Maldivian government, however, believed that they most needed the drafting expertise of the professor. By involving the Core Group and the Advisory Group, which included people with Shari’a expertise, it was assured that the draft penal code would be fully informed by the principles of Shari’a.
However, some questioned whether liberal Westerners should involve themselves in drafting a penal code based on Shari’a, given that Shari’a principles can conflict with Western liberal values. Professor Robinson and his team took a highly pragmatic approach, believing that the project was worth engaging in because it could bring greater justice to all Maldivians.
The Maldivian Penal Code is the first Islamic penal code to take advantage of modern penal code drafting forms in the past several decades. It can therefore serve as a model for other Muslim countries that seek to adhere to both Shari’a and international norms.
Source: Paul H. Robinson et al., “Codifying Shari’a: International Norms, Legality, and the Freedom to Invent New Forms,” American Journal of Comparative Law 2, no. 1 (2007); also available as Public Law Working Paper no. 06-26 (University of Pennsylvania Law School, 2006), http://ssrn.com/abstract=941443;
and University of Pennsylvania Law School, “Penal Code Drafted by Prof. Paul Robinson and Students Is Enacted in the Maldives” (press release, May 8, 2014),
https://www.law.upenn.edu/live/news/4728-penal-code-drafted-by-prof-paul-robinson-and#.VgLq4SiD-Ci.
EXAMPLE: A Process Approach to Reforming the Maldives Penal Code CONTINUED
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