Courts under State Capture? Judicial Independence in Somalia

GENERAL INTRODUCTION

On 29 January 2026, the Attorney General of Somalia withdrew a high-profile criminal case pending before a Regional Court against the President of the Jubaland Federal Member State. The withdrawal occurred nearly one year after an arrest warrant had been issued in relation to offences punishable by death and life imprisonment under Articles 184, 186, and 217 of the Somali Penal Code. This sequence of events raises serious concerns regarding the exercise of prosecutorial discretion and the handling of politically sensitive criminal cases.

To fully appreciate these concerns, it is necessary to situate them within Somalia’s judicial architecture. Despite the adoption of a federal system of government in 2000, the hierarchical structure of the judiciary has remained unchanged for more than twenty-five (25) years. The court system consisting of the Supreme Court, Courts of Appeal, Regional Courts, and District Courts continues to operate as established under the Judiciary Act of 1962[1], the Judicature Act of 1974[2].

By contrast, the Provisional Constitution of 2012 establishes the Constitutional Court, Federal Government level courts, and Federal Member State level courts.[3] This coexistence of pre-federal judicial statutes with a federal constitutional design has generated structural ambiguity, particularly regarding jurisdiction, prosecutorial authority, and the enforcement of judicial decisions in politically sensitive cases.

However, the arrest warrant was issued by the Banadir Regional Court, a court whose jurisdiction extends only within the territory of the Banadir Region pursuant to Article 2(2) of the Somali Criminal Procedure Code; accordingly, Jubaland falls outside the territorial jurisdiction of the Banadir Regional Court. The correspondence referenced MS/XG/76/2024, dated 26 November 2024, which addressed the question of jurisdiction, indicates that the Supreme Court of the Federal Republic of Somalia expressly delegated authority to the Banadir Regional Court in connection with the arrest warrant, as further reflected in the subsequent text.

The Supreme Court is vested with countrywide jurisdiction under Article 13 of the Judicature Act, that jurisdiction has, in practice, not been effectively exercised across the territory of Somalia for more than three decades. In practical terms, notwithstanding the statutory text, even the highest court has faced limitations in enforcing its authority. This reality is illustrated by the fact that, rather than issuing and executing the arrest order directly, the Supreme Court relied on a lower court to do so, effectively using it as an institutional shield.

Territorial Jurisdiction and Supreme Court Direction: The Banadir–Jubaland Question

Pursuant to Article 9 of the Judicature Act, 1974, Regional Courts are empowered to adjudicate serious criminal offences, including those punishable by the death penalty or life imprisonment. In this context, an assessment of offences triable before a Regional Court whether within the Banadir Region or in other regions demonstrates that offences set out under Articles 184 and 217 of the Penal Code properly fall within its jurisdiction, as both attract penalties of death or life imprisonment and are directly relevant to the case under consideration.

If this case were to be tried, for example, before the Regional Court located in Juba-land, that court would have been the most appropriate setting. However, the Supreme Court, by virtue of its power to transfer cases from one court of first instance to another, exercised that authority in this instance. Under Article 11 of the Criminal Procedure Code of 1963, the Supreme Court may order the transfer of proceedings where the following conditions are satisfied: –

1. The transfer is considered necessary in the interest of justice or public order;
2. The transfer is made upon the request of the Attorney General or the accused;
3. The transfer is from one Court of First Instance to another Court of First and
4. Both courts possess equal subject-matter jurisdiction.

Limited national police presence and challenges to enforcing arrest warrants across Federal Member state (FMS)

The Law on the Organization of the Police Force establishes the National Police Force and entrusts it with the prevention and detection of crime, the apprehension of suspects, and the investigation and suppression of offences. These functions are to be exercised by the Police Force under the direction and supervision of the Attorney General.[4]

In practice, however, the National Police Force does not possess effective operational authority within the territories of the Federal Member States. Under Somalia’s federal system, each Federal Member State maintains its own security institutions including police, military, and intelligence services which exercise de facto control over law enforcement within their jurisdictions.

Consequently, the National Police lacks the institutional capacity to take effective enforcement action against accused persons located in those territories, particularly where the individual concerned is a high-profile political actor, such as the President of Jubaland. Against this backdrop, directing an arrest warrant to the National Police Force for execution in Jubaland was procedurally indeterminate and institutionally impracticable. In the absence of jurisdictional reach or enforcement capacity on the ground, such a directive rendered the warrant effectively unenforceable, highlighting the structural coordination challenges inherent in a decentralized federal security architecture.

Deployment of Federal Military Forces and the National Intelligence and Security Agency

On 12 December 2024, federal military forces, in coordination with the National Intelligence and Security Agency, were deployed around the coastal town of Ras Kamboni.[5] The operation pursued two principal objectives: first, to expand federal influence in the Gedo region through efforts aimed at establishing an alternative federal member state structure parallel to Jubaland; and second, to apprehend the leadership of Jubaland.

The deployment, however, escalated into armed clashes between federal forces and Jubaland security units. As a result of the fighting, control of the town shifted to local forces, while federal troops subsequently crossed into Kenyan territory. In response, Kenyan authorities stated that they were closely monitoring the situation, particularly amid concerns that members of Al-Shabaab could exploit the movement of Somali forces to conceal their presence or cross the border undetected.

Executive Interference, Prosecutorial Discretion, and the Risk of Miscarriage of Justice

The withdrawal of a high-profile criminal case by the Attorney-General of Somalia following executive involvement first ordering the arrest and later prompting discontinuance raises acute rule-of-law concerns. While prosecutorial authorities may lawfully discontinue proceedings, that discretion must be exercised independently and free from executive direction. Once a decision to close a case is confirmed by the Attorney General, it must be transmitted to the competent court for the necessary legal measures and formally communicated to the accused as per article 72 of the Criminal Procedure Code of Somalia.

Comparative jurisprudence consistently affirms this principle. In Sharma v Brown-Antoine (Privy Council)[6] courts held that prosecutorial discretion becomes unlawful when influenced by political pressure. Similarly, in the case of Vineet Narain v. Union of India the Supreme Court of India established that executive interference in investigations and prosecutions, particularly regarding high-ranking officials, undermines the rule of law, separation of powers, and public confidence. The landmark judgment aimed to insulate investigative agencies like the CBI from political pressure.[7]

Accordingly, a case withdrawal driven by executive instruction rather than evidence, legality, or public interest risks constituting an abuse of process and a miscarriage of justice, whether used to persecute or to shield. To prevent such outcomes, discontinuance decisions must be reasoned, recorded, and judicially reviewable, grounded solely in independent prosecutorial judgment.[8]

Three considerations illustrate these concerns: First, executive involvement was evident when, despite an existing arrest warrant, the President of Somalia visited Kismayo in October 2025 to meet an individual sought by the court on allegations of treason. The visit reportedly occurred amid mediation efforts led by Kenya’s National Intelligence leadership Noordin Mohamed Haji, aimed at reconciling the two presidents, though those efforts ultimately proved ineffective.

Second, the Attorney General of Somalia did not withdraw the case for approximately fourteen months after the arrest warrant was issued. However, when the executive sought the participation of the accused-a high-profile figure in a meeting between opposition members and the government scheduled for 1 February 2026, the charges were withdrawn just two days before the event. This timing suggests that prosecutorial discretion may have been exercised in response to political considerations rather than legal necessity, raising concerns about the independence of the prosecution and the selective application of criminal justice.

Under core rule-of-law principles, the Attorney-General’s authority to institute, continue, or discontinue criminal proceedings must be exercised independently, impartially, and free from external influence, particularly from the executive branch. If a case is withdrawn because of executive instruction or pressure, rather than on lawful grounds such as insufficiency of evidence, public interest, or procedural defects, the withdrawal risks being unlawful, unconstitutional, and an abuse of prosecutorial discretion.

Critically, preventing a miscarriage of justice does not justify executive-driven withdrawal. On the contrary, a miscarriage of justice occurs where legal processes are manipulated either to persecute or to shield through political intervention. A lawful withdrawal must therefore be reasoned, recorded, reviewable, and grounded in law, not in executive expediency.

Third, a comparable incident occurred when a Jubaland court issued an arrest warrant against the President of Somalia, H.E. Hassan Sheikh Mohamud. The failure to enforce the warrant during the President’s visit in October 2025 further eroded the credibility of the judicial process and highlighted the impact of executive interference on judicial authority.

In conclusion, the conduct of the central authorities including the National Police Force, the Federal Military, the National Intelligence and Security Agency, and the executive branch collectively undermined the effective enforcement of the arrest warrant. The involvement of the executive arm in matters falling within the prosecutorial and judicial domains, coupled with the actions and omissions of the Attorney General, came at the expense of judicial authority and institutional independence. This convergence of executive, security, and prosecutorial influence weakened the autonomy of the courts and rendered the arrest warrant practically unenforceable, thereby eroding the effectiveness of judicial oversight and the rule of law.

REFERENCE

Berhe, Gebrewahid Welay, A Critical Appraisal Toward the Application of the Power of the Prosecutor in the Course of Withdrawal of Homicide Charges in Tigray: Case Analysis (August 14, 2025). Available at SSRN: https://ssrn.com/abstract=5394773.  or http://dx.doi.org/10.2139/ssrn.5394773.

Abdi Sheikh, ‘Somalia pulls troops out of Lower Juba after clashes with Jubbaland forces’ (2024), Reuters https://www.reuters.com/world/africa/somalia-pulls-troops-out-lower-juba-after-clashes-with-jubbaland-forces-2024-12-12/.

National Legal Framework and Primary Sources

Federal Republic of Somalia. (2012). Provisional Constitution of the Federal Republic of Somalia. Mogadishu: Federal Government of Somalia https://www.constitutionnet.org/sites/default/files/somalia_constitution_2012.pdf

Somali Republic. (1962). Organization of the Judiciary Law No. 3 of 12 June 1962. Retrieved from https://agosomalia.so/en/wp-content/uploads/2017/01/Organisation_of_Judiciary_Law_1962_English.pdf.

Somali Republic. (1974). Judicature Act (Amendment) Law No. 34. Available from the Office of the Attorney General legal repository: https://ago.gov.so/legislations.

Somali Republic. (1972). Law No. 2 of 23 December 1972: Organisation of the Police Force. Retrieved from https://policehumanrightsresources.org/content/uploads/2016/07/Organisation-of-the-Police-Force-Somalia-1972.pdf.

Somali Republic, Penal Code (Legislative Decree No. 5 of 16 December 1962) (as amended) https://www.refworld.org/pdfid/3ae6b5ed4.pdf.

Somali Republic, Criminal Procedure Code (Legislative Decree No. 6 of 16 December 1962) https://www.refworld.org/pdfid/3ae6b5ef4.pdf.

[1] Judiciary Act (Amendment) Law no. 3

[2] The Judicature Act (Amendment) Law No. 34

[3] See, Article 108 of the Constitution of 2012 under the National Courts Structure

[4] Law No. 2 (23 December 1972), Organization of the Police Force, article 10

[5] Abdi Sheikh, ‘Somalia pulls troops out of Lower Juba after clashes with Jubbaland forces’ (2024), Reuters https://www.reuters.com/world/africa/somalia-pulls-troops-out-lower-juba-after-clashes-with-jubbaland-forces-2024-12-12/.

[6] [2006] UKPC 57, Appeal No 75 of 2006

[7] (1998) 1 SCC 226

[8] Berhe, Gebrewahid Welay, A Critical Appraisal Toward the Application of the Power of the Prosecutor in the Course of Withdrawal of Homicide Charges in Tigray: Case Analysis (August 14, 2025). Available at SSRN: https://ssrn.com/abstract=5394773.  or http://dx.doi.org/10.2139/ssrn.5394773.