Analyzing Of Jurisdictional Scope Of Somalia’s Counterterrorism Law
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Category: Evidence & Procedure
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ANALYZING OF JURISDICTIONAL SCOPE OF SOMALIA’S
COUNTERTERRORISM LAW
Adan Mohamed Omar Ali, Somalia National University
ABSTRACT
This research examines the effectiveness of Somalia's counter-terrorism laws by analyzing their jurisdictional scope in terms of court, prosecutorial, and law enforcement capabilities. The study explores the legal framework governing counter-terrorism in Somalia. These laws are designed to enhance the capacity of law enforcement agencies, streamline judicial processes, and delineate clear roles for various stakeholders involved in counter-terrorism efforts. However, the effectiveness of these legal measures is often undermined by practical challenges. The findings of this research will provide a deeper understanding of the complex legal and practical issues surrounding counter-terrorism law in Somalia, informing future policy decisions aimed at strengthening the country's capacity to address this threat.
1. INTRODUCTION
Somalia has faced considerable challenges in its fight against terrorism, which has significantly impacted its stability and security. The rise of extremist groups within its borders has prompted urgent action from the Somali government. In response to this pressing threat, the government has enacted a variety of counter-terrorism laws and regulations aimed at strengthening its legal and operational framework. Jurisdiction to adjudicate refers to a country's power to bring individuals or entities before its courts or administrative tribunals. The U. S. legal framework uses the concepts of personal jurisdiction (relating to the court's power over a specific person or entity) and subject-matter jurisdiction (relating to the court's authority over the type of case) to define the scope of its courts' power to adjudicate1.
Jurisdiction can be divided into two main types: personal jurisdiction and subject matter jurisdiction. Personal jurisdiction determines if a court can hear a case involving specific individuals or entities, while subject matter jurisdiction dictates what types of cases a court is authorized to handle. Jurisdiction refers to a court's authority to hear and decide a case. It's about whether a court has the legal power to act on a specific dispute between parties. If the law grants the court the power to make a judgment, it has jurisdiction. The actual decision itself, determining who is right and what the outcome should be, is the court's judicial action2. Somalia's counter-terrorism law faces challenges in its implementation due to long-standing jurisdictional ambiguities between the judiciary and also security agencies like NISA, the police, and the SNA.
This lack of clarity has hindered the effective enforcement of the law, created confusion, and overlapped in responsibilities. This analysis aims to assess the clarity and effectiveness of the legal provisions by examining the jurisdictional, prosecutorial, and law enforcement capacities within the framework, identifying the challenges that have hampered Somalia's ability to combat terrorism.
1 Benchbook on International Law § II.A (Diane Marie Amann ed., 2014)
2 JW Walsh · 1901 THE TRUE MEANING OF THE TERM "JURIS- DICTION
2. OVERVIEW OF TERRORIST GROUPS IN SOMALIA.
After the collapse of Barre government in 1991, numerous Islamist groups emerged, included alItihaad/al-Islaami. The organisation pursued political violence and conducted operations in Somalia and the Ogaden the eastern region of Ethiopia inhabited by ethnic Somalis. The organisation’s objectives were confined to the Horn, largely directed against Ethiopian rule in the Ogaden, But in 1996 Ethiopian forces attacked al-Itihaad camps in Gedo Somalia and the organisation crumbled. 3 In late 2004, Al-Shabaab was a small group, consisting of only a few dozen dedicated militant Islamists. The majority of these individuals had previously been members of the al-Iti'sam organization, and spent time in Afghanistan4.
Al-Shabaab was an ideal partner in this push for Sharia Court unification, as it was one of the most multi-clan factions in Mogadishu, driven by its jihadist ideology that emphasized Sharia law and order. 5 The four key courts - Ifka Halane, Shircole, Towfiq, and Sii-Sii - drove a new process of unification. It's important to note that AlShabaab members were highly active in two of these courts, including the powerful Ifka Halane court. 6 The rise of Al-Shabaab in Somalia was aided by several deeper structural changes. One key change was the waning of the warlord system in Mogadishu by 2006. The second structural change was the increased power of the Sharia Courts, which was partly connected to the growth of the business community as they largely supported the courts7.
In February 2006, conflict erupted between the Islamic Courts Union (ICU) and Warlord united under the Alliance against Terrorism and the Restoration of Peace, which was supported by the U. S. and Ethiopia. Ultimately, a few months later, the ICU emerged victorious over the warlords. 8 Moreover, they faced a new situation, some being in positions of authority within the ICU and others making themselves ready for a war as yet undeclared. While recruitment campaigns and groundwork intensified in the months following the victory against the
3 Roland Marchal 2009 P 226
4 Ashley Elliot & Georg-Sebastian Holzer 2009, PAGE 391
5 Stig Jarle Hansen. 2013 page 34
6 Stig Jarle Hansen. 2013 page 32
7 Ibid 1
8 Ashley Elliot & Georg-Sebastian Holzer 2009, PAGE 391
warlords, providing al Shabaab with more foot soldiers than ever, its leadership played a critical role in global events.
3. SOMALIA'S COUNTER-TERRORISM LEGISLATIVE FRAMEWORK.
Somalia has developed a comprehensive counter-terrorism legislative framework to combat the threat posed by the al-Shabaab terrorist group and other extremist organizations. The primary law in this framework is the Anti-Terrorism Act of 2023, which defines terrorism-related offenses, establishes investigative and prosecutorial mechanisms, and outlines the roles and responsibilities of government agencies in counter-terrorism efforts. According to Annex 1 of the counter-terrorism law, the organizations or groups classified as terrorist by the Federal Government of Somalia include:
1. Al-Shabaab
2. Daesh/ISIS
3. Al-Qaeda and its affiliated groups sharing similar ideologies.
4. Any other organization or group that is designated as terrorist by the Federal Government
of Somalia This comprehensive approach to designating terrorist organizations provides the legal and regulatory framework for the Somali government to take appropriate counter-terrorism measures against these groups and their activities. It demonstrates the government's commitment to addressing the multifaceted terrorism threat in the country. In addition to the Anti-Terrorism Act, Somalia has also enacted other complementary laws and regulations, such as the Anti-Money Laundering and Combating the Financing of Terrorism Act of 2016. These additional laws aim to disrupt the financing of terrorist activities, enhance information sharing, and strengthen the overall legal and institutional capacities to address the terrorist threat.
Overall, Somalia's counter-terrorism legislative framework represents an important step in the country's efforts to establish a comprehensive legal architecture to combat the persistent threat
of terrorism, particularly from al-Shabaab and ISIS. However, the effective implementation and strengthening of this framework remain critical to the success of Somalia's counterterrorism strategy.
4. JURISDICTIONS OF SOMALIA'S COUNTER-TERRORISM LAW.
Somalia has faced significant challenges in combating terrorism within its borders. To address this threat, the Somali government has enacted various counter-terrorism laws and regulations. This analysis will examine the jurisdictional scope of Somalia's counter-terrorism law. Somalia's counter-terrorism law applies to all activities related to terrorist. As outlined in Article 2(1), is characterized by a remarkably broad and comprehensive scope. This allencompassing approach indicates the Somali government's determination to address the multifaceted nature of the terrorist threat, ensuring that the country's legal instruments can effectively respond to the diverse range of terrorist-related activities that may emerge9. Article 2(3) Somalia's counter-terrorism laws primarily apply within the geographical boundaries of the Somali Republic.
This includes the mainland territory, as well as the country's territorial waters and airspace. The laws grant Somali authorities the power to investigate, prosecute, and take enforcement actions against terrorist activities occurring within these defined territorial limits. The counter-terrorism laws in Somalia demonstrate a broad jurisdictional scope, as outlined in Article 2(4). This provision allows for the extraterritorial application of the laws, extending their reach beyond the country's territorial boundaries10. In addition, As outlined in Article 51(1) of the counter-terrorism laws, the Somali government has established collaborative efforts with other countries to address the transnational nature of terrorist crimes.
these international partnerships facilitate the exchange of information, the conduct of joint investigations, and the prosecution of terrorist offenses that transcend national borders11. Article 57 of Somalia's counter-terrorism law, which focuses specifically on terrorism-related issues, holds priority over any conflicting legal matters and cannot be superseded by other
9 Article 2(1) of counter-terrorism law in Somalia
10 Article 2(4) of counter-terrorism law in Somalia
11 Article 51(1) of counter-terrorism law in Somalia
regulations related to its scope12. Somalia's counter-terrorism framework seeks to address the transnational nature of modern terrorist threats by equipping the country with legal tools to effectively counter terrorist activities that originate outside its borders, particularly those involving Somali citizens. This framework reflects Somalia's commitment to combatting the global interconnectedness of terrorism and protecting national security. It establishes a clear jurisdictional scope that includes the country's territorial boundaries, personal jurisdiction over its citizens, and some extraterritorial reach, enabling authorities to combat terrorism both within Somalia and, in certain cases, beyond its borders.
A. COURT
Somalia's counter-terrorism legislation outlines the jurisdictional capacities and responsibilities of various government agencies and entities in the country's counterterrorism efforts. Specifically, the Anti-Terrorism Act establishes specialized counterterrorism courts to handle cases related to terrorism. According to Article 35 of the Act, these specialized counterterrorism courts are Army Court, that have been granted jurisdiction over a range of terrorism-related offenses. This includes the authority to preside over cases involving the carrying out of terrorist attacks and other terrorismrelated activities13. However, the Ordinary Courts still handle cases related to financial terrorism, based on the provision of the Anti-Money Laundering and Financing of Terrorism Act of 2016, whereby Article 30 states that the applications must be submitted to the regional Courts14.
In contrast, the counter-terrorism act clearly indicates that it takes precedence over any conflicting laws, as detailed in Article 57. This means that any existing legislation that contradicts the counterterrorism act will be set aside in favor of its provisions. Thus, the counterterrorism act governs any actions related to counterterrorism, ensuring its rules are
12 Article 57 of Somalia's counter-terrorism law
13 Article 35 of counter-terrorism law in Somalia
14 Article 30 of the Anti-Money Laundering and the Financing of Terrorism Act
prioritized over previous laws15. Additionally, Article 23 of Somalia's counterterrorism law addresses financial terrorism, further affirming the jurisdiction of the Army Court16. Furthermore, Somalia's legal framework clearly delineated the roles and responsibilities of different courts. Moreover, any jurisdictional violations outlined in Article 4(2) of the Somali Criminal Procedure Code of 1963 state that if a court lacks jurisdiction over a case's subject matter, the entire proceedings are rendered void. The court can declare this at any stage of the process— whether during the trial, an appeal, or a revision—either upon request or on its own initiative. 17 The continued involvement of the ordinary courts in partial terrorism-related cases, highlights a potential overlap in jurisdiction and raises questions about the validate of jurisdiction of the courts.
The application of jurisdictions and the roles of various judicial bodies involved in counterterrorism efforts may vary significantly in practice.
B. ATTORNEY GENEREL
Somalia's counter-terrorism legislation outlines responsibilities of various government agencies and entities, which responsible for investigation of criminal activities and prosecutions. According to Article 36 of counter-terrorism law in Somalia, establishes that the Attorney General of the Army Court has the capacity to handle cases related to terrorism activities that are prescribed by Somalia's counter-terrorism law18. The establishment of these dedicated counterterrorism courts and the empowerment of the Army Court's Attorney General are intended to provide a specialized judicial mechanism to address the threat of terrorism in Somalia.
15 Article 57 of counterterrorism law in Somalia
16 Article 23 of counter-terrorism law in Somalia
17 Article 4(2) Somali criminal procedure 1963.
18 Article 36 of counter-terrorism law in Somalia
C. LAW ENFORCEMENT CAPACITIES
Security sectors in Somalia have departments of investigation, and grants enhanced investigation of criminal activities, including the Somali Police Force, the National Intelligence and Security Agency (NISA), and the Somalia National Army (SNA). These security forces are empowered to arrest individuals when there is clear and reasonable suspicion of criminal or terrorist activity. Despite that, in detaining and investigation of criminal activities are solely responsible by NISA. Notably, Article 37(1) explicitly grants the authority to arrest suspected terrorists to all security forces responsible for security, with a specific emphasis on the powers of NISA officers. This provision centralizes counter-terrorism efforts within NISA, establishing it as the lead agency tasked with investigating, arresting, and gathering evidence related to terrorism-related offenses19.
While the Anti-Terrorism Act of 2023 assigns the primary counter-terrorism role to the National Intelligence and Security Agency (NISA). The Somali Police Force has functional counterterrorism unit under its Department of Criminal Investigation Division (CID). This unit is trained and funded by international partners, indicating their specialized expertise and capabilities. Additionally, the Somalia National Army (SNA) also maintains the ability to conduct its own investigations, make arrests, and collect evidence related to terrorism. However, the continued involvement of the Somali Police Force and the Somali National Army (SNA) in counter-terrorism efforts, alongside the primary role of the National Intelligence and Security Agency (NISA) can create confusion and inconsistencies in the legal process.
Each body may have different procedures, priorities, and interpretations of the law, which could lead to conflicting outcomes. The reliance of Ordinary Courts based on the Anti-Money Laundering and Financing of Terrorism Act, highlights the complexity of legal frameworks surrounding terrorism, indicating that cases may not be handled uniformly across different jurisdictions. This multifaceted approach may undermine the effectiveness of counterterrorism efforts and calls for clearer
19 Article 37(1) of counter-terrorism law in Somalia
delineation of responsibilities among these institutions to ensure a more cohesive and efficient legal response. Overall, the counter-terrorism laws in Somalia have significantly strengthened the investigative powers and responsibilities of key law enforcement agencies, with NISA playing a central role. This institutional framework is intended to enhance the government's ability to prepare for, prevent, disrupt, and respond to terrorism activities within the country.
CASE STUDY
Case Study: Sentencing of Terrorism Supporters in Benadir Region Court. On 23 Sep 2024, the Benadir Regional Court reached a verdict in a significant case involving a financial terrorist network. The court sentenced four individuals who were accused in financing and facilitating support for the Al-Shabaab terrorist network. The Chairperson of the Court, Salah Ali Mohamud, announced the outcomes of the proceedings. “Hassan Osman Aden received the most severe punishment, being sentenced to 13 years in prison alongside a fine of $20,000. In contrast, three women—Fadumo Hassan Osman, Amina Abdullahi Abbabur, and Hasna Aweys Khasim—were each sentenced to two years in prison. This case highlights the judicial system's response to the financing of terrorism and the importance of holding sympathizers accountable”20.
5. CHALLENGES AND LIMITATIONS:
Somalia's counter-terrorism laws offer a legal framework to combat terrorism, but their practical implementation is hindered by significant challenges. While the government has made efforts to strengthen its jurisdictional, prosecutorial, and investigative capabilities, the country's broader security and governance issues continue to pose obstacles. The investigation of terrorism cases is particularly difficult, hampered by limited government control over territory, lack of advanced forensic technology, and the ongoing conflict with Al-Shabaab. These factors significantly constrain the ability of Somali authorities to effectively investigate and gather evidence, hindering the successful prosecution of terrorism-related crimes.
20 Somali National News Agency
6. CONCLUSION
Somalia has made a legal framework with counter-terrorism laws that aim to improve the effective combat against terrorism. These laws have designated specialized courts, prosecution, and investigation units to handle terrorism-related cases. The Army Court, Attorney General of Army Court, and the National Security and Intelligence Agency (NISA) have been given the authority to adjudicate, prosecute, and investigate terrorism offenses. Despite the specialized units, terrorism cases are still managed by the Ordinary Courts, Police, and Army, resulting in possible overlaps and inconsistencies in handling these cases. The Ordinary Court and police rely on the Anti-Money Laundering and Financing of Terrorism Act of 2016 to adjudicate terrorism-related cases.
The counter-terrorism law holds priority over any conflicting legal matters and cannot be superceded by other regulations within its domain. Furthermore, the law specifies that if a court lacks the appropriate authority to hear and resolve a specific case, the entire legal process is deemed invalid. To enhance the effectiveness of counter-terrorism efforts, the Somali judiciary should consider clarifying the roles and responsibilities of the different agencies involved in counter-terrorism. Additionally, the Somali government should establish a dedicated counter-terrorism court to streamline the judicial process and address the potential overlaps and inconsistencies. Future research could explore the impact of specific counter-terrorism policies on the ground and examine the role of international cooperation in Somalia's counter-terrorism efforts.
7. RECOMMENDATIONS
1. Establishment of specialized court for counter-terrorism activities, which operates in
accordance with international human rights standards and due process principles.
2. Establishment of independent of Federal Investigation Agency (FIA).
3. The Supreme court to ensure that the judiciary operates within the framework of the law
and maintains the jurisdictional distinctions between specialized and ordinary courts.
4. The Government to invest in training and capacity-building for prosecutors specializing in
counter-terrorism cases.
5. The Government to develop clear standards for evidence admissibility in counter-terrorism
cases, while investing in training and equipping law enforcement agencies for counterterrorism operations.
6. Strengthen coordination and information sharing between the Somali National Army, the
Somali Police Force, and the National Security and Intelligence Agency, and also international partners.
7. Promote community-based approaches to counter-terrorism.
8. Explore public perceptions of counter-terrorism policies and their impact on trust in
government institutions and community engagement.
BIBLIOGRAPHY
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