Sign in to follow this  

Despite Gains, Somalia Still Has Legal Hurdles to Overcome

Recommended Posts


The election and installation of the government in exile marked the climax of a long effort expected to reverse the anarchy and decay that befell the state with the toppling of President Siad Barre in 1991.


The disintegration of central political control saw the country split into numerous fiefdoms ruled by mutually hostile warlords with the aid of armed militia.


For these reasons, Somalia has for the past 14 years been a classical example of a failed state - and a nation struggling to achieve a semblance of the political stability requisite for participation in international legal relations.


A state is essentially a creature of the law. Statehood is a legal phenomenon that occurs only upon fulfilment of certain criteria. Under international law, an entity must possess four attributes to qualify as a state. First, it must contain a distinct community of persons forming a permanent population. Second, this community must be subject to a government - an organised political authority that possesses and displays an inherent sovereignty. Third, it must comprise a defined territory.


Even if the precise frontiers were in dispute, there must at least be some delineated portion of territory that is indisputably under the control of the government of the said state. The fourth requirement is the capacity to enter into legal relations with other states, including the signing of treaties, the exchange of diplomatic envoys, the conferment of certain privileges and immunities and so forth.


THE PAST decade of institutional decay has deprived Somalia of any practical semblance of the second and fourth traits. Nevertheless, it is a matter of unanimous agreement among pundits that, technically, Somalia's statehood has never been in doubt. This is for the reason that, under international law, a state does not cease to be merely for reasons of prolonged internal turbulence. Nevertheless, considering the formidable length and complex nature of Somalia's civil woes, it may have been a tenable apprehension that it could enter the annals of history as a novel exception; that first example of a state that auto-cannibalised into virtual non-existence.


Fortunately, the transfer of the new government of president Abdulahi Yusuf from Nairobi two weeks ago holds the promise of restoring some socio-political consistency from the present state of shambles. It is instructive, however, that despite the enormous gains achieved hitherto in the effort to restore peace and order in Somalia, several legal hurdles remain to be overcome.


Concern has been expressed that the administrative efficacy of the new government may be a nightmare in view of the numerous clusters of armed militia who still wield control of their respective enclaves.


Doubts have similarly been voiced concerning the constitutionalism of the first government in history to be elected in exile. How does the fractional suffrage involved impact on the Somali people's collective right to self-determination? These are matters that go to the root of the question of whether the new Somali government will enjoy sufficient recognition within the international community to enable a restoration of the state in active international relations.


Recognition of a government is a legal process by which members of the international community acknowledge the legitimacy of the political outfit alleging control over a state. The notion of recognition dictates that regimes will enjoy certain rights and privileges in the course of international relations only if they display a certain degree of legal propriety (adherence to constitutionalism) and effective control over the territory over which they assert sovereignty.


Only a recognised government can enter agreements or make declarations that bind the state, or claim and control foreign assets that belong to the state. In other words, the capacity to enjoy the rights of a sovereign in foreign relations accrues only to political regimes that significantly wield authentic administrative authority over a state's territory.


An apt demonstration of the legal significance of recognition of government, is the English case of Haile Sellasie vs Cable and Wireless LTD. In 1936, the Emperor of Ethiopia sued a British telecommunication company in a UK court for monies owed under a state contract. Ethiopia was at the time facing military invasion by Italian forces, but the emperor maintained control over a greater portion of Ethiopian territory, and his was therefore recognised by the UK Foreign Office as the de jure government of Ethiopia.


He won the claim. However, two years later, as the defendant moved to the Court Of Appeal, the Italian enemy had overrun forces loyal to the emperor. The Italian government assumed the status of the new de jure sovereign of Ethiopia. Accordingly, the court of Appeal reversed the earlier ruling, finding that Haille Sellasie was no longer entitled to espouse the claim on behalf of the state of Ethiopia.


AN APT demonstration of the legal significance of recognition of a government is a debacle that occurred in the early stages of Somalia civil unrest - the 1993 English decision of Republic of Somalia vs Woodhouse, Drake and Carey Suisse SA. The suit emanated from a shipment of rice bought by the Republic of Somalia to be delivered into its capital, Mogadishu. By the time the ship arrived offshore, the government of Siad Barre had been toppled. The port town was engulfed by civil strife. The captain of the ship deemed it too dangerous to deliver the cargo, and by order of the commercial court in London, it was sold and the proceeds deposited in court.


In July of the same year, after the signing of the Djibouti Agreement by the concerned parties, Ali Mahdi was nominated as interim president of Somalia, whereupon he nominated Mr Qalib as his prime minister. Shortly thereafter, an application was filed in the UK High Court on the question of whether the two million pounds sterling that belonged to the republic of Somalia could be paid out to Crossman Block, the firm of solicitors acting for the interim government of Mr Qalib.


The UK High Court declined to pay out the sum on the basis that the said regime did not fulfil the traditional legal prerequisites to the UK's recognition of a valid government - whether the regime in question is able to exercise effective control over the territory of the state concerned, and whether "it is likely to continue to do so."


The interim government was thereby found unfit to successfully sustain the claim on behalf of the state.


SO QUESTIONS of stability and sustainability are unavoidable and crucial. The government of president Yusuf faces the onerous challenge of asserting internal sovereignty over the hitherto chaotic landscape, thereby sustaining an agreeable level of administrative constancy and social coherence.


On this note, it is encouraging to note that the initiative to restore peace and order in Somalia has involved enormous goodwill on the part of its East African neighbours, particularly Kenya, which spearheaded the Somali National Peace and Reconciliation Conference in 2001.


Relevant Links


East Africa

Legal and Judicial Affairs

Peacekeeping and Conflict Resolution

Conflict, Peace and Security





The recognition conferred by the East African Community from the very onset, also assures the fragile new government a degree of international status. Replicating this credibility throughout the global community of states remains the long term challenge that President Yusuf and his administration must attain to reclaim Somalia's rightful place in the international legal order.


Mathew Kihuithia Ngugi is a researcher for Kenya Law Reports.


Good point by Mathew Kihuithia. But what about Modisho? what degree of international status?

Share this post

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Reply to this topic...

×   Pasted as rich text.   Restore formatting

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this