SOMALI DEMOCRATIC REPUBLIC

CO M ME N TA RY

ON

THE CRIMINAL PROCEDURE CODE

by
IQBAL SINGH, M.B.E., B.A., LLB.,
Legal Expert {J.T. E.C.), Mogadishu

MOHAMED HASSAN. SAID; LL.B., Judgee of the Supreme Court, Mogadishu

Published under the Authority of the Ministry of Justice and Religion

Printed by: Wakaladda Mndbacadda Qaranka – Xamar

 SOMALI DEMOCRATIC REPUBLIC

CO M E N TA RY

ON

THE CRIMINAL PROCEDURE CODE

by
IQBAL SINGH, M.B.E., B.A., LLB.,
Legal Expert {J.T. E.C.), Mogadishu

MOHAMED HASSAN. SAID; LL.B., Judgee of the Supreme Court, Mogadishu

Published under the Authority of the Ministry of Justice and Religion

Printed by: Wakaladda Mndbacadda Qaranka – Xamar

 ,. ~
v·
( ll I

. J '"· ••. ), ,. ~ ,. ~ ~- t' J

.1.• •j • ;
TABLE OF CONTENTS
'". ; "" . ~·1 ., ',

Pag<
Foreword
(ii
Preface · .
: (,
Introduction
•(Vi
.,., I!
· List of cases cited
't (ix

BOOK qNE ·- General Provisions (Articles 1-95) . 1-.1 o·

·r..
J ,,,BC?.OK TWO ::'- .Proceedings of First Instance (Articles
96-'1'34) .
iQ9~15'

BOOK THREE ...:.C. Evidence (Articles 1_35-207) 161-22~

. '·~ . '• ;t ·
,. BOOK · FOUR - Appeals and Execution (Articles
208-274)
·L . 231-27~
. i '..

. ( ! ', ..·--~

BOOK FIVE' - Judicial Relations with Foreign Auth ~ri-

0

• 1.- ties(Final P~ovisi~ns ·.(Articles 275-288) 281-289

,
..
Addendum ·
29J
 (iii) (iv)

Note (4); Article 67,Note (Ii; ArtiC'le 70, Note (l) . T:hi s is tl1,:
most effecU.ve (a.nd discreet) way to contribute to the improvement
of our legislation. ·
FOREWORD
Illustrations, which usually follow ·each Article ;ind relevant
It is a great honour and pleasure for ime to write the «Fore· Notes, .are. of paramout didactive value for Law stucknts ancl
word)) to the «Commentary on the Criminal Pmcedur,e Code)).
laymr1n. ThE'y are ex:reinely simple and ·c.oncisc, yd extremely
dear and perfect.ly suHed to the purpose (s0e Notes to Arlicle 741.
This comment made the Criminal Procedure Code attractive,
to the reader, not only by supplying him with illustrative examples
Notes and illustrations on Evidence are sirnp'.y preciu:1 ~.
which might give vividness aind reality to abstract J,egal :principles .
but also by tracing decided cases by the Suprei:ne Court.
In conclusion, t11is Co:nmentary is a valid work '.ool for law -
men and . worthy sludy tool for studein:s and laymen.
It is the first comprehensive work of its kind a,nd, as S·UCJ,
apart from any intrinsk valu,e, would deserve high appreciation. I
I offer .my whole-heartedly gratulations to Jaalle Iqbal Singh
am convinced a1nd I am not making an over-statement if I say that and to Garsoore Mohamed Hassan Said.
t'here was a deeply felt mcessity on lhe part of judges, advocates,
judicia:ry Police Officers and Law students in particular . for an
easy rE:f ere-nee book of this kind. Mogadishu, February 25, 1973.

This is a book to be kept at hand a,nd to be consulted in any

circumstamces . Nor is that all. Specia.l mention deserves the Musa Xaji Diriye
Authors' skill in making references to ju·dgments of the Supreme ATTORNEY GENERAL
Court and Courts of Appeal to illustrate the exact meaning or ill1· ·
terpretation of controversial 1points. This, at least, shows the
Authors' extoosive legal background ~nd diligent researc'1 work
that was ca·rried out.

Ln controversial issues the Authors do 'not impose stock and

barrel their personal opinion and point of view. They only quote;
coninect, infer from or r,elate to one a,nother S,omali existi.n,g laws
and jurisprud.ence. That strict simp.le approach instead' of being a
limitation tums out to be a highly desei:.ving quality in a.commein-
tary work . ln other words, the Authors do not attempt to give
lessons in d'ifficult or controversial questic:1.s, wl,ltch would unfail-
ingly by lea·d them fo emphasize their convicti.ons and ,their way o{
interpreti ng the law lo the prejudice O·f the genuine (and even
someti.mes flat or obscure) meani,ng of the law. So the Authors
duly u,nderline gaps and discr·~p aincies. but leave them as they are
anu do llO\ indulge in trying lo close ~nps nnd logicize discre-
pancies at a1ny cost (see for insla,nce Arlicle 5, Note (4); Artie.le 18.
 ' 'I
(vl)
I N T R O'D U C T I O N
Bdore. the independence and U1t1ifii-zabion of 'the country, the1
were tvio cliflfereri,t Codes of Criminal P,roce:dtire fri ·f.orce in .the tw
PREFACE pa_r{'s.,_In the South (Trust Territory of «Somalia» under .the Itali�
Administration) I it Was the Italia1t1 Criminal Procedure Code. J
Dry or bare laws are not generally easy to under­ the North (British Somaliland Protectorate); it was' t1:ie: Crirri'in;
stand or apply. For. this reason, we have made· this Procedure Ordinance (Cap. 6 of Volume I of. Laws of Soma'J.ilani
attempt to write a commentary on the,Criminal Procedure 1950) which itself was based -0n the Indian Cod·e of Grim�nal P·rc
.
Code (Legislative Decree No. 1 of 1st June, 1963), · as cedur,e. . . . .
subsequently amended. · • . . ·· · f .au the
I

The Act· of Union (Law No. 5 of 31 st J an1:1ary, 1961

For ease of reference, we havereproduced each Arti­
cle of the Code as amended uptodate.. indicating the re­ .• rised the .c6ntinuation of the exisO,ng laws and regulatiorti·in 'th
ference to the. amending law. The �Notes» follow those
· respectivec regions until they were repl,aced by uniform' Jav.,
Articles of the Code which,"in our opinion, need some ex-
planation or elucidation. • applicable .in ,the enHre territory of the· Republic.
We have also cited the relevant judgnients . of. .the 'Law N� . '5:�f 30th January, 1962, delegated to the
power to 'issue a Criminal Prooed.ure Cod.e witlhiri six 'month
Govemi:n:�n : . the
Supreme Court in the appropriate places in the commen­
tary and have refrained from quoting a mass of fore,ign and a, Corrumissioo of Experts was a,p,poilnted for ,t�e purpose ·o
cases which. are not easily availabl� here. dr.aftinog i.t.· This ti,me-lirnn.t was exten·d:ed twiJce,.by.
Law No. 21 .o
It is hoped that this commentary book is of some use �th ·J.�ly, 1962;. an·d t,aw No. 4 of 29th Ja,nuary, 1963. The... fi�.a
. to tex,f of Jh.�. Cr.iiminal Procedure Code ,as prepared by the Commis·
th.e Judges, Prosequtors, .Defence Counsels, the Polite
sfon ofEx:perts ,w.as .approved by Legisla.tfve Decree No, 1 of ls•
and others in their day to day work · of administering
justice in the courts of the country. . June, i963', It �ame into force in the en.tire te'nritoTy of the Rep,u �1.ic on
Our thanks are due to Jaalle Pror Abdulgan(:Scek 1st August,. 1965 (vide Supfeme Court Crimlrial Appeal :r,.J·�;· 8 of l965,
Ahmed, th.e Secretary of State for Ju,stice and Religion; Yusuf Saeed Arraleh v. State). . . ...-; ·
Jaalle Abdullahi Haji Abdurahman, .the Director General
of the Ministry of Justice a_nd Reltg{on; Jaalle Brig . .
It wa�:·,pt1b,H��d :k, the Official Bulletin Suppl001ent No. 9 tc No. 12
�t.�f�t·,Dec-ember, .. 1964, i:n the Italia,n fa[lgu..a,ge and in.Sup·
General Jama Mohamed Ghalib, . the ··'Comma!),dant. of. pl��iit:N¥;'2:;;-�No'. .,'ff·
of 6th November, ,'f955;_.iri:'.the. Eng·Lis:i�j�.
Police; J aalle A bdullahi Saeed Osm_dlj, the C'/ii,ef Staie
Counsel for their Presi�ency of th.e S4.premi\Revolutio­
nary Council, for their encouragement :'in the ·p.repardtion g:u1rge.. How.ev:er, by Ar.tlcle 8 of Law No."·:l of 17.th Febrtutry; 19�.
of this commentary book; to Jaalle Mus'ci Haji Dlriye, the . ib is specifically. proyided th:a,t where ther� 'is a conflict h�tw�em i,he
Attorney General, for writing the Foreword; and to Jaal­ I:ta-jia!Il text all'l!d the .English tex-t, ,t1:ie_ lalter shall· prevail. .·
layal R. P. Bhatia, Saeed Egeh Omer and Mohamed Da- The _Code·· has been specif!oally amended .'by ·,the follo;wi, .
, n'g
· '
gane for typing the manuscript.· · ia-ws:- ,, ·
. . · '
Mogadishu, 12th February, 1973. Decree La,w No. 1 of 17th fobruary, 1968, converted. :into law
by Law No. 16 of 30th May, 1968; :..
Iqbal Singh. ·
Law No. S �r'26tb January, 1970;
Mohamed Hassan Said Law No. 17'�f 7th ApfliL 1970;
 (vi i) (viii)

Law No . 27 of 26th May, 1970; which carunot be said to be entirely suitable for t'1e actual require -
Law No. 84 of 12th December, 1972. rh:ents ain·d conditions of the Soma.Ji Democratic Republic. Under
thes.e cfrcumsta.n,ce, ·one thing may be sai,d ~vith certainty and that
The Code has al,so been impliedly' ,.wn,e,nd,ed by: is tl)at both the Penal Code aind the Criminal Procedure Code re -
Legis!aHve Decree No. 1 of 31st March, 1964 (Military Crimi- quire ,a thoroug.h revision with a view to speed up the adiministra-
nal Pr.ocedu.r,e Code); tion.-'of justi.ce withoU,t .undue regard to technicalit-ies and to s'uit
Legislative Decree No. 2 ,of 31 st Jvlar,ch , 1964 (Organisation of the actual requirements of tl-ie Somali peop!,e in this revolu:ionary
Military Judiciary), era .
and accordingly, all references in the Code to Military Penal Sec-
·tions are omitted . ·· ·
The Code i~ divided into the following five BOOKS:-- I. s.
BOOK ONE - GENERAL PROVISIONS M. H. S.

BOOK T-WO - PROCEEDINGS OF FIRST INSTANCE

BOOK THREE - EVIDENCE
BOOK FOUR - APPEALS AND E.XECUTION
0

BOOK FIVE - JUDICIAL RELATIONS WITH F 0REIGN '

AUTHORITIES AND FINAL PROVISIONS .
Except for BOOK THREE (EVIDENCE) which is substan-
Hally based on tlie Indian Evidence Act, 1872; relating t-o criminal
maters a,s applicable ~n the Northern R:egia<ris of the Re.public, the
other provisions are a hokh-potch of the Criminal Procedure
Codes. of pr.e-i1ndependence days.
N1ow, what is the obje;ct of a Criminal p.r,o.cedure ·.Code? The
object· of a sound Criminal Procedure Gode should be: .
(a) to 1pr:ovide adequate fa·cilities to an a•c:ctised .person to de-
fend himself in a proper manner; and
(b) to ensur,e, at the same time, ,lpeedy disposal of au· criminal
cases so t:hat innocent persons should not suffer from pro-
tracted proceedings ,and the real ,off.enders should be
punished as soon as possible after proper trial. . .
How far the present Crimin a.I Prooedure Code fulfills tfrris
object ·is not easy to say and the reason fior that is not far·to s~k.
The .Criminal Procedur;e Code is mainly an adjective law o.f proce-
dure a,nd is meant to provide a machinery f.or the pu1n·i·shment o[
o[[oo.t\0rs against the substanUve criminal law which is the Penal
Code (Legislative Decree No. 5 o,f 16 December, 1962). The Penal
Code itself is almost a ve.rbatLm copy of the Halian Penal Code
 (Ix)

L I S T O F C AS E S ·c I. T E D

CASE Page

Supreme Court Criminal Appeal No. 8 of 1965

(Yusuf Sc;r:eed Arraleh v. Sl'O.te) (vi)

Supreme Court Criminal Appeal No. 75 ·of l970 2

.(Seek Osman Moallim Samo and another v. State) 3

Supreme Court Criminal Appeal No. 61 of 1970 .

(Hagr Farah Ali Omer and another v. State)

Supreme
· Court Criminal Appeal No. 3 of 1963 . · . . 5, 6, 9, 11, 13 .
· (Haji Abdirahman Mohamed Hassan v. State)

Supreme Court Criminal Appeal No. 4 of 1964 5, 9, 11

(Yusuf Saeed Arralek ·v. State)

·Supreme Court Criminal Appeal No. 101 of 1967 f3

·(Yusuf Hersi Yusuf v. Sl'O.te)

Supreme Co'urt Cr-imi,naf MisoeLJa,neous Petiti-on No.

181 of 1967 . . . . .. . . . . . . 19
-(Attorney General v, /llalo Ibrahim Ali E/mi and
·others)

Supreme Court Criminal Appeal No. 92 of 1970 .. . 26, 104

(Dubad Mohamoud Jama ,'lnd others v. State)
·�.·
· Supreme Court Criminal Appeal No. 7 of 1968 . 52.
(Ali Afoh'lmed Deria (Nafyar) v. State)

Supreme Court Criminal Appeal No. 153 of 1967 . 54

(Mohamed Jama Urdoh v. State)
 (x) (xi)

Case Page Case Page

. :supreme Court Criminal Appeal No. 1 of 1965. 72 Supreme Court Criminal Appeal No. 19 of 1970 . . 232,241
(S.tate u. Ibrahim Salak and Abdul Karim Garad (Gahir Abdi Dualeh u. Aw Buran Awad Aboker)
Mohamed)
Supreme Court Criminal Appeal No. 1 · of 1966 . 235
Supreme Court Criminal Appeal No. 13 of 1968 91 · · (Hassan Haji Abdillahi u. State)
(Mohamed Egeh Ghaleb v. State)
Supreµie Court Criminal Appeal No. 168 of 1970 . 99 Supreme Court Criminal Appeal No. 99 of 1967 236
(AwU Btlleh Samante_r and another u. State) (Abdi Aw _Adan Molv1.med u. State)

Supreme·Court Criminal _Appeal No. 7 of 1970 . 99 Supreme Court Criminal Appeal No. 20 of 1970 237
(Hagi Abdi Jama ai1d two others u. State) (Stc:.te u. Mohamed \l7ais Qbseyeh)
Supreme Court Crim,ina,l Mis,:ella.n,eous Petition No. Supreme Court Criminal Appeal No. 145 of 1967 237
. 3 of 1963 . . . . . . . . .. . . . 105
u.
(State Lt._ Hassan Abdulla Walanwal & others)
(Ahmed Haji Bahdone u, State)

... Supreme Court Criminal Appeal No. 28 of 1967 251

Supreme C::ourt Criininal Appeal No. 1 of 1961 123, 187 (Abdulkadir Abdi Dualeh v. State)
. _(Ahmed Sultari u. State)
Supreme Court Criminal Appeal No. 17 of 1968 251
Wo6iiningto� v._ Director_ of Public Prosecution 123
(Mohamed Regal Warsama u. Slate)
Supreme C:ourt Criminal Appeal No. 6 of 1961 123
(Hassan. Warsama Arraleh _u. State) Supi"eme Court Criminal Appeal No. 100 of 1970 . 252
(Hassan Mohamed Hassan and another u. State)
· .Supreme Cour( Criminal Appeal No. 100 of 1967 . 133
(Hassan lsrizan All u. State)
Supreme Court Criminal f,.ppeal No. 19 of 1968 · 13.'i
· (A"dan Haji Ismail Yonis u. State)

Suprem_e Court· Criminal Appeal No. 9 of 1Q61 199

(Suleban E[mi u. Sfote)

Supreme Court Criminal Appeal No. 4 of 1961 222

(Mohamed Ada.-i u. State)

Supreme Court Criminal Appeal No. 10 of ·1962 222.

(Mohamed Ali Bodeh u. State)

Supreme Court Criminal Appeal No. 5 of 1965 · 222

· (Hassan Abdi Bodd and another v. State)

R. v. Bnskcrvillc . . . . . . , , ,. . , 222
 ••(, , .UJt l,'I '
. __ : 1·1.':.'..,,ru;.:,wm11. Sh. Xnr11i.n

The Crimlna\ Procedure Code

BOOK ONE
O.ENERAL PROVl-SlONS
PART I .
PRELIMIHARY PROYISIOHS

Chapter 1. ·
COURTS AND PARTIES
·· 1 .

Section I
THE COURTS

Article I
Criminal jurisdiction

1. Criminal. Jurisdfct,ion shall be exercised in .accord,ance wit

lht:! provisions -of the spiri-t of the R.ev,olution and lbe part a,ppli
cable of _the Constitu{ion an<l of the Law un the Organisation o
_the Judkiary by: ·

(a) District Courts;

(b) Regional. Courts;
(c) Courts of A~peal;
(d) Supre_me' Court.

2. In accordia·nce with Law No. 3 of 10 January, 1970, is-sue<

by the Supreme Revolutionary Council by :
,(a) the National Security Court situ:ated a.t Mogadis:eio;
. (b) Section:s o( the said Court established i-n accordaoc<
with Article I of the said Law.
(As amend'ed by . Article I -of Law No. 8 cif 26.1.1970).

NOTES

!il) According- ta. Article I of the La:w. on the Organisation ol

the Judiciary (Legislative Decree No. 3 of 12 June, 1962), ,as subse·
quently amended, (herein after called «~he Ju.diciary ·Law;,;) .
 -2- -3
before the es.tablishment of the Na!ion<1! Security Court under L<1w
justice shall be administered by the ·f.ollowing Courts:-- No. 3 of 10 January, 1970, will be a nullify and that cases so
(a) Distriot Courts; tried should be referred to the National Security Court.
(b) Regional Courts; T:he Supreme Court, after considering the principle of the
· (c) · Courts of Appeal; undersirability of making legislation ex post facto or having re-
tros,pecti.ve effect which wiU impair existing rights or obligations,
(d) Supreme Court. came to the conclusion that the ordinary Courts have jurisdiction
to di,spose of cases the trials of which had commenced before
(2) In this Code, we are concerned . only with the crimi?al ·the publication of the Law establi:shing the National Security
jurisdiction of these Courts. This A:ticle decLares th~t the · cnm- Court.
. inal jurisdiction shall be exercised. m accordance wi,th .the pro- (4) In another appeal (Criminal Appeal No. 61 of 1970, Haji
visions of the spirit of the Revolution and the part applicable of Farah All .Omar and another v. State), the Supreme Court expres -
the Constituti-on and of the Judiciary Law. . sed its views about the relationship of the Supreme Court and
(3) The Constituition.referred to in Note (2) above was abolis,h- the National Security C6.urt. It said that the Supreme Court is
ed by Decree of the Supreme Revolutionary Council .No. 3& of .24 the ·highest Court of the .land and its orders may not be legall y
February, 1970, and the relev.ant provisions of the Judiciary Law · challenged by the National Security Court. Also, the interpretation
will'b"e di·scussed in their ap:pro.pria.te place in t,he succeeding Notes. of law by the Su,preme Court is binding upon all and construe- ·
However, mention may be made of the National Security Court' . tions plac'.ed on the law by other organs or bodies cannot take
which .was ·established under Law No. 3 .of 10 January, 1970 . . By .· precedence over those of the Supreme Court.
°Law: No. 8 of 26 Januray, 1970, thi:s Article was amended by a.d-
(\ing · to. the list · o·f Courts t~e N.ati.o~al· Secur~ty C1Jqrt with Article 2
~riminal· jurisdiction over ~ertam specified . off.en~es: . An mterest -
i·ng point about the. effective date of the Jurisd1d10n of t~e N~ - Jurisdictfon and composition of the Courts
ti,ona1· Security Court came up before the Supreme Court m Cn-
minal Appeal Nq. 75 of 1970, Seek Osman Moallim Samo .and
another v. State. ·· · I. Except as otherwise provided in this Code, the criminal ju-
risdiction ·and composition of the Courts both in regard to sub-
This was an appeal against the judgment of the Court of Ap- ject matter and territory shall be determined in ac<:ordance with
peal, Benadir, declaring inadmissible the. appea.l lodged by the the La:w on the Organisation of the Judiciary and Law No. 3 of
appellants against the judgment of Benad1r Regional Court con- 10 January, 1970.
victing them of the offence of . Abuse .of Office by a Public Officer
conlr,a Article 250 (as read with Article 71) · of the Penal Code . (As amended by Article 2 of Law No. 8 of 26.1.1970).
At lhe :heari,ng of the appeal, the $lat,e raised a· preliminary 2. NotwHhstanding anything contained in pa.ragraph 4 of Arti-
i5sue, viz., that the ordinary Courts (includ.ing the. Supr·e:ne
Court) h.ave no jurisdiction over the of.fence m qu.eshon which cl.e 2 of the Law on the Organisation of the Judidary, and except
was within the ju,risdiction of the National Security ,C~ourt by as otherwise provided in any special law, the Criminal Section
· virtue of Article 6 of Law No. 3 of JO January, 1970. Article? of . of the Di>strict Courts sh'all have jurisdiction over all offence s
lhe said Law says that it shall be deemed . to have come into punishable with imprisonmen.t up to three years or fine up to
force on 21 October, 1969 (the date of the Revolution). Sh. So. 3,000 or both:
.·There is no dispute that the offence .char.ged was aliegedly
co.mmitted before 21 October, 1969, and that the pro~eedmgs of
NOTES
the tr:ial Court were completed before the pubhcation of the
Law es·lob\i-shlng lhe National Security C~urt.
(!) Acoording to Article 2 of the Judiciary Law, the Criminal
Section of .a District Court shall consist of a single Judge and
·The question to be decided was whether the. effe.ct qi Article shall have jurisdiction over the whole territory of the Distri~t
9 of the said Law was (plainly or by necessary :imphcahon) that with respect to offences punis.hable under the Penal Code (Leg1·
[rials held by the ordinary Courts after ·21 October, 1969, and

•
 -4- · 5-
~la,tivc Decree No, 5 of 16 December, 1962) with lmprlsonmenl
for a perlo,d not ·exce,edln.g 3 years o.r f.l.ne not exceeding Sh . peals lie dlrnct to it. Such appeals shall be henrd by n
~o. 3,0.00/- or both . It will be seen from this that the jurisdic- Division Ben,ch of lhree · Judges.
tion with respect to. offences is restricted to offences punishable
under th~ Penal Co~e only. This ~as .been modified by paragrph (5) Each District has its own Di,strkt Court and each Region,
2 of Article 2 of this Code by domg away with this restriction. a •Regional Court. Previously there were only two Cour.ts of
This means !-hat the Criminal Section shall have jurisdktion over Ap.peal, one at Mogadiscio serving as an Appellate Court for the
~II 9~fences (un_der the P~nal Code or other law,s) punisha:b!e with Southern Regions of the Republic' and the other at Hargeisa for
1mppsonment tor a · per-iod not exceeding 3 years or fine not the Norther.n Regions. With a view .to speed up the admi·nistra-
exceeding Sh. So. 3,000/- or both. . · tion _of jtistke, the Secretary of Sta.te for Ju,stice and Religion by
I . ' Decree No. 171 of 13 March, 1971, es.tablished . a Court of Ap.peal
in each of the remaining Regions. .
(2) According to Article 3 of the Judiciary Law, a Regional . (6) The follo,wing two cases on the question of criminal jurisdic-
Court sh-all have jurisdiction over the whole territory of ,the Re- tion ~ame up before the S.upreme Court :~
gion:
(a) its General Section shall consist of a single Judge a-nd Criminal Appeal No. 3 of 1963 - Haji Abdirahman Moha-
shall have jurisi;liction wHh res~ect to offences not wifo- med Hassan v. State ( Somali Law Reports, Hargeisa & Bu-
in the jurisdiction of the Di,strie:t Court and the Assfae rao Regions, 1964-65, p. 162);
Section;
Criminal Appeal No. 4 of 1964 - Yusuf Saeed Arraleh v.
(b) its Assize Section shall consist of the President of the State ( Somali Law Reports, Hargeisa & _Burao Regions,
Regional Court and. two Assessors. It shall have juri- 1964-65, p. 185). ·
sdictio.n with res:pect to offences punis\lable with impri-
son,ment f.or not less t~an ten years. (7) In the fifS!t ap,peal, an offence which. strictly f~ll w_ithin the
that if. a case which is triable by a Distnct Court 1s ·tned by a
(3) According to · Article 4 of the Judiciary Law, a Court o.f Regional Court, Hargeisa. It w,as held by the Suprem.e Court
Appeal sha 11 have juris,diction over the whole territory of the · that H a case which is tr.iable by a Dis,trict Cour,t is tned by 0
Region: Re.gional Court, no prejudice can be sa,id to be caused to the
(a) its General Appellate Section shall conisist of a single accuse.<l, and hence the Regional Court ~,a? c?n:·petent to hear the
Judge and shall hear appeals against judgments of a case. The reason for restricting the Junsd1cbon of .the Courts
District Court and the General Section of a Regional is ·that serious offences should be tried by more expenenced_Jud-
Court; . ges. .If serious offences are tried by less experienced Judges,
· it ·is · feared that jusJice will not be meted to the .accused: On
(b) its Assize Appellate Sectio·n shall consist of the Presid- the other hand if a minor case is tried by a more expenenced
ent of the Court of Appeal, a Judge of the Court and Judge, the acc~sed i;s not prejudiced in any w_ay. \\'.ith respect
three Assessors. It shall hear appeals a~ainst judgm- to · jurisdiction, the main question to be cons,1dered 1s wheth~r,
ents of .the Assize Section ,of the .Regional Court. by th-e trial tha-t was held, the accused was 1n any way preJU·
d-iced.
,.4) According to Article 5 of the Judiciary Law, the Supreme t° ... .
Court shall : (8) In the second a.ppeal, the ap,pellant was tried by the Ass!ze
Section of the Regional Court, Bur,ao, for cer!ain offences which
(a) have its seat in Mogadiscio; were triable by the General Section of the Region.al Court and Jor
(b) have jurisdiction over the whole territory of the .Republic; which the first a;ppeal would lie to the General Appellate Sect.10.n
· of the Court of Appeal and not to the Assize Appellate Sect1~n .
(c) consist of · the President, 1he Vice President and four It was submitted by the appeHant's ·counsel that both t~e tnal
.other Judges; before the Assize Section and the appeal befor~ t.he .A?s1ze Ap ·
(d) in addition to other matters, hear appeals against judg- pella.te Section were null and v.oid for .la~k of JUnsd1ct1on.
Supreme Court agreed with this ·subm1ss1on. The Co~rt sta e
1\!
ments given by any Court in its appellate jurisdi~tion or that the question to be considered was whether the tnal of the
against judgments given by any Court from wh·ich ap.- case by · the .Ais-size Section of the Regional Cour.t and the hear-
 -6- -1-

ing "Jl the appeal by the As.size Appellate Section of the Court (2) Regional Courts · or Di,stricit Courts with regard to
of Appeal were legally justifiable. It went on ·to answer the . the Court of Ap.peal wi,thin whose jurisdiction they
question in the negative in the following words:- . are located;
«lt ~hould be. noted that the General $ection and the Assize (e) the term «competent Court» s.hall mean the Court whi,ch
SPcbon of the Regional Court are hierarchically of the same
le ·el; only. the latter has higher powers than the former. . has jurisdiction· over .the offence or the proceedings;
Tl .e same is the case with the General Appellate Section and · (f) the term «President of the Court» shall mean the Judge
. th ~ Assize Appellate Section of the Court of Appeal. So
,the. pri.nciple of greater guarantee of justice, which was a.p- who presides over the Court or over a section of t.h e
plied in Haji Abdirahm.an Mohamed Hassan v. State (Criini- . Court;
nal Appeal No. 3 of 1963) is not applicable to the instant
. oase. We do not find any other reason which ·would justify. (g) the term «Judge» shall mean a member of the Judiciary
the trial and the hearing of the appeal held in violation of who exercises judicial fundions in a Court ;
Aticles 3 and 4 of the Judiciary Law laying down t.he juri-
sdiction of the various Sections of the Regional Court and . · (h) the tenn «competent Judge)> shall mean a Judge who
the Court of Appeal.» exercises his 'functions · in a competent Court.
For the ·reason stated above, the -00nvictions and 'sentences
. in the case were set aside and the case was remanded to the Anticle 4
Court of· Appeal, Hargeisa, for retrial according to law. ·
Subject-111atter jurisdiction
Article 3
I. To determine whether the Court has jurisdiction over the
Definitions . subject matter, rega,rd shall be .had to the maximum punishment
established by law for · each offence for which ,a charge has been
. For the purposes of this Code, unless the context indicates brough~. ,taking intq· account any aggravating cirtumstances, but
otherwise: . excluding· the effects of recidivism.
·{a) the term «Law on the Organization of the Judiciary» 2. Whenever any Court considers that it does not have jurisdic-
shall mean the Organization of the Judiciary approved tion over .the ,subject matter of a·n offence, it shall make a ruling
by Legislative Decree No. 3 of 12 June, 1962; · to that effect at the .request of the prosecution or the defence,
(b) the term «Court)) shall mean any uf the judicial organs or on Hs own motion.
enumerated in Article I of this Law or any sedion of · 3. Non-compliance with the prov1s1ons regarding jurisdiction
such organs; over subfect matter shall render the proceedings void and a de-
· (c) the term «higher Court)) shall mean: claration to that effed may be made by a Court, also on its
(I) the Supreme Court with regard to the Courts of own motion, at any stage of .the proceeding that is, trial or ap-
Appeal; peal or rev·ision.
(2) the Court of Appeal with regard to Regional Courts
and to the District Courts which are located within
t.he jurisdiction of the same Court of Ap·peal; NOTES
(d) the term «lower Court» ,shall mean: (1) No.tes under Article 2 explain the criminal jurisdiction of
(!) the Courts of Appeal with regard to the Supreme the various Courts. Paragraph 1 of this Article declares that
Court; subJect-m11tt~r jur!sdlct!on sha.11 .be determined by the moxlmum
 -9-
-8-
the General or As.size Section of a Regional Court. All that the
punishment fixed by law for the offence charged taking Into ac- maximum Indicates is that !.Jie case· ls outside the Jurisdiction o'.
~o.unt any aggravating circumstances except the effect of recl.d- a District Court. But as the minimum is five years the cas1
rvrsm. · does; not come ~I thin the sub ject,matter jurisdiction of the Assizt
.Section set out m letter (c) above which excludes offences pun
ishable with imprisonment for «les·s than ten years» .. As -such
ILLUSTRATIONS: the case is tri.able by the General Section of a Regional Couri
Taking another case of Article 441 of the Penal Code (homicid1
(a) X is charged wi,th causing hurt fo Y (Article 440(1) of without the intention of causing death), the punishment is fron
the Penal Code). Th1s offence is ,punishable with im- ten to fifteen years. This is clearly wlthin ,the jurisdiclion o
prisonment from 3 months to 3 years. As the maximum the Assiz,e Sect-ion of a Regional Court. .
imprisonment is 3 years, the case' falls wHhin the juri-
s·diction of the Cr,imina.! S~ction, of the District Cour.t. (3) Though paragra.ph 3 of this Artic·le declares that non-com
pliance with ;. the p.rovisions regarding jurisdiction over subject
(b) If in the above illustratfon, X causes hurtto Y in order matter shall· render the proceedings void, yet the Supreme Cour
to commit or conceal another offence (Article 39 (b) of in Criminal Appeals Nos. 3 of 1963 and 4 of 1964, referred to ir
Penal Code). he h,a,s commiitted the offence with ordinary Note (6) . tinder Article 2 above, held that if a minor case ii
aggravating circumstances and the -maximum imprison- tried by a more experienced Judge the accused is not prejudicec
ment shall be 3 year,s plus one-third of 3 years, i.e., 4 in any way but if serious offences are tried by less experiencec
years according to Article 118 of the Penal Code and Judges, i.t is feared that justice will not be meted to the accused
the case would fall · within the jurisd-iction of the Gene- Although in Criminal Appeal No. 3 of 1963, the trial was contrar~
r-al Section of the Regional Court. to the letter of the law, fhe Court upheld the trial on the .princi·
\ ple tha,t there is a greater guarantee of justice where a ca·se tria -
(c) However, H X in the above iUustraHons !is a recidivist bJ.e .by an inferior -Court -is tried by a superior Court.
within the meaning of Artkle 61 of the Penal Code,
though the fact of recidivism increases the -punishment .
. u.pto one-six.th (Arti-cle 124 (I) of the Penal Code), thfa
shall not be tak~n into account for the purposes of de- Article 5
termining the subject-ma.tter jurisdiction of the Court. Territorial jurisdiction
This means that X,.J1i.tho~h: ,a. ;rt:ioi-divist, shall ,still be
tried by the District Court.
I. The place where the offence was committed shall determ ine
/2) We have seen f.rom paragra·ph 1 of this Article that to deter- the territorial jurisdiction.
mine -the subject-matter jurisdiction of a Cour.t, regard · shall be
had to the maximum punishment ·prescri;bed by law for the p.ar-
ticular offence. We have al-so. seen from. Note. (2) under Article In cases of:
2 that the Assize Section of a Regional Court shall ,have jurisdic-
tion wlth res,pect to offences punJsha,ble with : ' (~) a <(contiintiing offence»; or
(a) death; (·b) a «!permanent offence»,
(b) Imprisonment for life; . · in place where the la·s.t act or omission in a continuing or per-
(c) ,imprisonmeni f.or not · 1ess than ten years. ma-nent offence ·occurs shall determine the Court at which the
Punishments in letters (.a) and (b) above do not cause any offence shall be tried.
difficulty but there may be some difficul,ty in regard to . the pun-
ishment in letter (c). Let us t_ake the case of carnal violence 2. When:
(Articl e 398 of the Penar Code) which is punishable with impri·
(a) it is not possible to determine the Court which has
sonment from five to fifteen years. Is the case triable by the · jurisdiction in accordance with paragraph 1 of this Ar -
General Section or the Assize Section of a Regional Court? . · He·
re looking at the maximum of fifteen ye~r~ does po! s?l".e the ticle; or
problem as to whether the offence falls within- the yuns-d1chon of \
 - 10 -
.11 -
(.b) the alleged offence was committed outside the territory
of the Somali I~epublic, cle, non-compliance with the provisions regarding territorial ju-
risdiction shall render. the proceed.ings· null and void only :
the· Supreme Court shall designate the Court which shall try
the case. (a) if timc.:y objection is made in the manner described j;i
paragraph 3 of this Ar.Ude; and
(As amended _by Article I of Decree Law No. I of-17.2.1968
-converted .into law by Law No. 16 of 30.5.1968). {b) as a result of such J.ack of jurisdiction the rights of the
accused were prejudiced.
3. Objections as to territorial Juri,s,diction sha.11 be raised in the·
(6) J.n fact. as we ·have seen earlier in Notes under Article 4,
Cour~ which is . alleged not to have such ju1 ):,diction, by thei pro- lhe Supreme Court, in Criminal Appeals Nos. 3 of 1963 and 4 of
sec~ti~n ?r·. the defence, as soon as the fact of such alleged LL~ .1964, has held thaLeven in the case of the subject-matter j:1risdic-
of Junsdwhon comes to .the notice of the parties concerned; or tion the question of p,rejudke to the accused is to be t,ake .1 into
the Court on its own motion may declare itself ~ acoount.
1_. _N?n-compliance with the provisions regarding territorial ju-
r1sd1cbon shall only render the proceedings null and void, i.f ti- Article 6
mely objection was made in the manner described in the prece- · Jolnder of accused or offences
uing paragrnph and a·s a result of such lack of jurisdiction' the
rights of the accu.sed were prejudiced. · I. There fa joLnder when : .
(a) more than one .p.erson is a.Jleged to h9 ve taken par: in
NOTES the commission of the same offence; or
: 1) lt is a norm::il rule of territorial jurisdiction that an offence (b) fJne person iB chargerl with more than one off ~ncE· .
0
i1all be l!·1e d by the (;o;-ni)etcnt Court of the place where it is com-
,1ittcd . If X causes hurl to Y in I-!argeisa, it is the Criminal Sec- 2. The oompe.ten:t ·court, within the meaning of Articl~s 7 ariu
ion of the 1-largeisa Dis_trict Court that has juris·diction to try 8., may, upon request of the prosecution or the defence or on iti·
he case.
own moiiim,i:>rder that the per.sons or offences be tried separa.tely
2) However, in the case of a «continuing offenc~» or a «perman- for reasons of convenience.
·nt offence» it is the place where the last ad or omission occurs
vhich shall determine t]:ie territorial jurisdiction. ·
3) A «continuing offence» .is deHned .in Arlicle 45 ·of the Penal NOTES
:ode of follows·:- ..
«Whoever, by more than one act or oinis"Sion done with ·(!) Par.a_graph 1 (a) of this Article relates to what is known
the same criminal i,ntent, commits, at the same time or as «joi,nder .of persons» and paragraph 1 (b), to «joinder of char-
at different. times, more than one breach of the same ges)>. If X and Y .take part in the .commission of the same of-
provision of law, of the same or dHferent gravity, shall fence, s,ay theft contra Article 480 of the Penal Code, they may be
be guilty of continuing offence».
tri·ed together. Th.is i;s «joinder of persons» . If X commits more .
4) What is a «permanent offence»? There is no definition of :th:an ;one oHeru::e, viz., thef.t in Y's house and also causes hurt to
1is either in this Code or the Penal Code. It· is believed that .Z .contra .Articl.e 440-0£ the Penal Ccide, he may be . charged with
1is expression has been taken from the Italian penal Jaw but these two offences .in one trial. This is «joinder of charges». How-
1 fact the concept of a «·permanen,t offence» has no place in the . ever for reasons of convenience, the competent Court may order
-omali penal system. · that' the peroons 6~ offences may be tried separately.
5) According to paragrnph 3 of Article 4, non-compliance with . (2.) J.t will be .noted .that this Article dc:ies not restrict .the nun:i-
1e provisions regarding subject-matter jurisdiction shall render ·o.er ci.f offences which. may be joined and tried 1~ one _trial nor 1s
1e proceeding,s void but according to paragraph 4 of this Arti- it confined to similar offences or offences committed in the same
trans.nct!on.

I•,• ' t • : '; ' '• _;•,._' !, ,

: • ,· . ·
 - 12 -
·-- 13 -
Article 7
sha.11 •render the proceedings
• • • ,
null and voi·d I and such determina-
Effects of jolnder on subject-matter ~ion · may be made also .by the Court on its own motion .at .any
jurisdiction o~er the offences stage o.f the ,prnceeding5.

I. When there .is joinder withi,n the meaning of Article 6 and : NOTES
(a) some of the offences come und.er the j,urisdidion o·f the · (1) According to paragraph 1 of this Article as amended by
Assize Section of the R.egional Court, while other offen- Article 3 of Law No. 8 of 26 January, 1970, in the case of joind-
ces come under the jurisdkfi.on of the Genera.I Section· er of- offences, i•f some of the of:fences come within the jurisdiction ·
of the R.egional Court, or of the Criminal Seotion o.f the · of the higher Court and the others ·wi-thin the jurisdiction of the
District ·Court, all the offence~ shall be tried by the · lower Cour.t all the offences shall be tried by the higher Court.
Similarly if one of the offences falls within the jurisdiction of the
Ass-ize Section of the R.egional Court, provi'ded that in · National SecurUy Court, all the offences shall be tried by such
every case where one of the offences comes within .the Court.
jurisdiction of the National Security Court, all the of- ·
fences shall be tried before the iSai,d Natfonal Security .
Court; . , . . ILLUSTRATION:

X is' ,charged with assault contra Article 439 of the Pen:?J

(As amended by Article 3 o.f La,w No. 8 of 26.1.1970). · Code which is trfable by the Di,strict Court, and theft wHh ag,gra-
(b) some of the offences come under the j.ur.is-didion of the v.a.f.ing circumstances ·punishable under Article 481 (1) of the Pen-
a I Co,de, whkh is triable by the General Section· of the R.egional
General Section of the R.egional Court, while other of- Court. Both these offences ·s hall be tried by. the higher Court,
fences come under the jurisdktion of the Criminal Sec- vii., the General Section of the R.egiona.J Court.
tion of the District Court, all the offences shall be · tried
by the General. Section of the R.egional Count; (2) · According to paragraph 2, non-compliance with the provi-
sions of ,p.ara,graph 1 shall ma.ke the trial a n'll.llity. It may be
(c) some o·f the offences come under the juri·sdiction of the mentioned that in such a case the question of prejudice to the
accused does not arise as was the ca.se in the Supreme Court ·Crl-
Military Penal Section of the R.egional Court, whNe mirtal Appeal No. 3 of 1963 referred to earlier on. The Supreme
other offences come under the jurisdiction of' another Court, in Criminal Appeal No. IOI of 1967, Yussuf H.ersl Yussuf
Section of the R.egfonal Court o.r of the Criminal Sec- v.. State, held that a · joint trial of the crimes o.f ca.rnal. violence
tion of the District Court, all offences committed by · (Article 398 of the Penal Code, punishable with 1mpnsonment
membern of the Armed Forces even if they have oeased from 5 to 15 years) and ,simple hurt (Article 440(1) of the Penal .
Code, punishable with imprisonment from 3 mont~s t~ 3 years)
to be such members after commissoin of the offence, by · the District Court, Las Anod, :,vas a. clea.r v10Jation of t.he
shall be tried by the Military Penal Section of the R.e- provisions of .p aragraph 1 (b) of this Article and hence the tnal
gional Court. The juris.diction regarding offences com- was a nullity.
mitted by a per,son not belonging to the Armed Forces
shall · be determined within the meaning of sub-para- Article 8
graphs (a) and (b) of this •par,agraph.
Effect of joinder on territorial jurisdiction
2. The non-observance of the above provisions regarding the
effect of joinder with respect to jurisdiction over subject. matter 1. When there is joinder within the meani,ng. of Article 6 and
when two or more Courts have territorial jurisdiction, · then all
 - 14 - - 15:,-
offences shall be tried: 2. In cases of conflict, the Court, of A•ppeal shaJ.1 de,signa.te the
(a) by the Court within whose jurisdiction- the most serious Court which shall try tj1e case,. or H the Courts in conflict are
offence was committed; or located within the territorial jursdiction of dHf€rent Courts of
A-p,peal,,. t~en . the .S.u,pr.eme ,Cour.t shall .designate the Court which
(b) when a number of offences of equal gravity were com- shall try the c.ase.
mitted, by the Court in whose territory tihe largest num-.
ber of the offences was committed.
. N .9 T E S
2. When it is not possible to determine the competent Court in ' '
acco,rdance with the . preceding paragrap.h of this Article, the (1) Tins Article explains what. i.s mean,t by «conflict of juri -
Court of Appeal shall designate the Court which shall try the sdldion». ·. When two· or · more Courts either take cognizance or
case; or the Supreme Court shall designate the Court which shall refuse to take cognizal'lce of the same offence, there is conflict
try the case when the Court,s are located within t.he territorial o.f jurisdiction. In such a case the C0urt of Appeal (if the
jurisdiction · of different Courts of Appeal. Courts are within 115 territorial jurisdiction) shall designate the
Co.urt which shall try the offence but if the Courts are located
3. Failure to observe the provisions regarding the effects of within the territorial jurisdiction of different Court.s of Appeal,
then the .Supreme Court shall desi1gnate the Court which shall
j0inder with regard .to territorial Jurisdicti0111 shall only render try the case.
the proceedings null and void, if timely objection is made 'in
accordance with paragra.ph 3 of Article 5, and as a result the (2) Now what is meant by the .ex,p,ression «to take cognizance»?
rights of the a.ccused were prejudiced. The Gode does not define it.• The word «cogniz.ance» is defined
in BI.ack's Law Dictionary (4th. EdHion,. pa:ge ·325) as . «jurisdk-
tion, or the exercise of jurisdiction, or power- to try a,nd ·determ-
ine cases; judicial examination of a matter or power and autho-
NOTES rity to make it». In other words, taking cognizance means ap-
plying the mind of the Jucjge to the facts constituting the of-
The preceding Article relates to the effect of jo~nd~r on fence for' the purpose of initiating j,udicial proceedings against
subject-matter jtiris~iction over t~e ~ffe~ce~ .. Tris Arhde. rela~ the accused or taking steps to ·see whether there is any basis
tes to the effect of jomder on territorial iu.nsd1chon over the of- for initfating judkial .proceedings.
fences . If two or more offences are committed by the same per-
son within the. ter.ritorial jurisdiction of two or IT!or.e Courts, theA
all such offences shall be tried by the Court w1thm ":'hose jur)· Article fO
sdiction the most serious of the offences was committed or d
the offences committed were of equal gravity then by the Court Disqualification of the Judge
within whose juris.diction the largest number of o.ffences wa,s
committed. · · I, A Ju•dg·e may fake ,p,al"i:, im.. a · ju;di'cia.J caipacity ~n any cri-
min~l .prooeedii=rgs if: ·
Article 9
;, fa):h:e pa-rtioi,pateddn the .siame ·p.roceedings, as a Judge in
Conflict oi jurisdiction -another Court;·

1. Ther~ .is a conilict of jurisdiction when two or more Courts : (b) he acted jn the same proceedings ,as : ·I
(a) take cognizance; or (i) . a proq~cutor; .
('b) refuse to take cognizance, . (ii,) a .defence counsel;
of the same offen~e. :(iii) · a .representative: o.f any ,party;
 - JG - - 17 -
(.i.v) a witness;
NOTES
(v) an exper.t or t~hnkal consul.tant;
(c) he is the party on whose repor,t, oompla'int or request the ( 1) This Article enumerates the various causes by which :
pr-0ceed,ings were started; Judge sh.all be ddsqualified .from taking part ,in any crimin ~
proceedings. The principle is that laid. down in the maxim «n,
( d) he ha,s any personal interest in the proceedings; mo stbi esse judex vel sui jus dtcere debet», that is, «iNo ma1T1 ea
· be hi,s own Judge or tve · judgment concerning his own rights)
(e) he is married to, is an «ascendant» or «descendant:. of, is It is one of :the oldes and p.lainest rules of Justice and of corn
brother cir sister o,f, married .to an .«,as,cen.danb or «.desc- mon sense that n~ man shall sit as Judge in a case in which h
enda.nt» or married to a brother or sister of ,a,ny ,person has a substantial interest.. It rests on the philosophy that say
that human beings are a,fter all human beings and, with all he
who is taking pa;t in the proQeedings in any .of the n·our d.ue to the honesty :and integrity of Judges, they shall no
foUowing capaciti'es:- hear cases in which they are themselves concerned. Wheneve
there is a likelihood that the Judge would from kin<lred or an:
(i) Judge; other cause have a bia,s in favour of one of the parties, i.t woµl1
be wrong for him to ·act.
(ii) prosecutor;
(2) The provisions o.f ;paragraph 1 shall equally ap,ply to As
(iii) ,defence counsel; .sessors who, in fact, are Judges of fact •i,n cases i,n which the:
' (iv) a representative of any party; partidpa,te.
I
I (v) or any per,son who has any personal interest in (3) Non-compliance with the provi•sions of this Article shal
j the case; render . the proceedings · null and V'Oi-d.
. '
(f) he has given advke ·or ex,pres·sed his opinion on the
subject of the ca,se outside the exercise of his duties as Article 11
a Jud.ge. I Transfer of proceedings
2. A judge shall disqualify himself ·as soon a.s he becomes
aware o.f the existence of any of the causes enumerated in para- 1.. . When considered necessary in the interes,t of justice or pu
grnph 1 of this Artiicle, and . he sh,\11 refer the m~tter, through blic order :
· t.he President of the Court, to the higher Court which s:hall pass
the neces,sa,ry orders a,s provideid in par.a•gra1ph 3 of Article 11. (a) the Supreme Court may transfer the proceedingis, upor
request of the Attorney General or of the accused :
3. The provision,s of ·paragr,a•ph 1 .of ·this Arti,cle a,pply also to (i) from one Court of first instance to :another Court
assessor·s. An assessor shall dis,quaIM.y himself as soon as he of first instance having equal subject-matter juris·
becomes aware of the existence of any one of the causes enume- diction;
rated in ,paragraph 1 of this Article; ,and such a,sses~r shall
refer the matter to the President of the Court" who shall arran~e (ii) from one Court of Appeal to another Court of Ap·
to replace him with another assessor, accor,din,g to the assessors · peal; ·
roll. · · ·
(b) the Court of Appeal may transfer the case, within the
4. Any violation of . the provisions of this Article sH·an r~ntder limits of its. jurisdiction, upon request of the Office of
the proceeding,s null and void and the· Court may also ~o e er- the Attorney General or of the accused, from t~e Cri~i-
mine on its' own motion a,t any stage of the •proceedi11gs. nal Section of a District Cciur.t to the General Section
of a R~·gio.nal :court.'
 - 19 -
- 18 -
accused transfer the proceedings from the Criminal Sec-
2. When a Judge .of the corri,petent Court : tion of a District Court to the General Section of a Re· ·
gional Court.
(a) .is himself the defendant; or.
(.b) is t.:h'e fojured par.ty, (3) It .will be noted that the transfer of proceedings referred
to in the preceding Note (2) is in the discret ion of . the Court.
the higher· Court, ·U1pim the ,request o.f ,the Attorney Genera,! o,r of It may transfer the proceedings . when considered necessa ry in
.the accused or ,a;J,so on i:ts ,awn motion, sha·11 transfer the case the . ,interest . of jusUce or public order. In Criminal Miscella-
io anothe:r luwer Cpurt having equal .subject-rruitter j.urjsdiction. neo.us Petition No. 1.81 ·o.f 1967, Attorney General v. Illalo Ibra-
3. When ·a Judge o.f the competent Cour.t rs : dis~ua!Hied f:Fom him .Ali Elmi and others, the Supreme Court ordered the trans -
~aking p:art in a G,ase for ..the ;reason stated dn para:graiph 2 of fer of iproceedings from the Regional Court, Burao, to the
Regional Court, Hargeisa, at the request of the Attorney General
Ar:Hcle 1.0,, the .higher Court may : on the ground that the trial, ·if held at Burao, might lead to
(.~') order lhat th~· trial be held i~· .the .·comp.etel!lt Coi.\d ·with- disturba.nce of public order. ·
.9ut the pantici,p.ati0;n ,ol the .Judge. so ·a.ffected; 'Or ·
(4) It will also be .noted that in the case of transfer by the
(b) transfer the case to another · iower Court having egual Supreme Court it is the request of the Attorney General (as dist-
sub'ject--matter · jurisdiction. inct from the «Office of the Attorney General» which expression
is defined in the next succeeding Article) or. the accused, whereas
in ,the cas·e of transfer by· the Court of Appeal, the request is of
. NOTES the Office of the Attorney General or the accused .
. • .• 1··

(5) According to paragra-ph 2 of this Article, if the Judge him-

(I) It is of paramount importance that parties brought before self is a party to the proceedings (either as an accused or vic-
the Court.s should have .confidence in the impartiality of the tim), the higher Court shall, upon the . request of the Attorney
Courts. It Ls the duty of t.he higher Courts ,to dear away every- General or the accused or on its own motion, transfer the case
thing which might reasonably create su~picion run,d distrust in to another lower Court of equal subject-matter jurisdiction.
the Courts and so to promote and maintain in the public a
feeling of confi,dence in the administration of justice which is , so . (6) We have seen in Article 10 t~at a Judge shall be di_squali-
esse.ntfa:J for social .order and security: · It is not ·. enough to. ,do fied from trying a case for cert am ·caus.es set out therein . In
justice; it must be seen to be done. such a case, the higher Court may, according to paragraph 4 of
(2) The provisions of this Article vindicate the principle set this Article :
.out in .th.e .above Note . . Accor-ding fo ·parag.r:a:p.h 1 :
{a) . !the·· Su·preme ·Court may, · i,n the ··interest of jusHce or pu- (a) order the trial to proceed before the competent Court
blic order and . on the request of .the Attorney General excluding the disqualified Judge; or, .
m foe· accused, transfer the ·proceedings :
(b) transfer the case to another lower Court having equa I
(i) from o~e Court of first ·instance to another C?u~t subject-matter juri,sdiction.
· ·,<". of · f,i rst in1Stance having equ?l .subject-1:11atter JUfl·
. · . s;dJction, e.g.. from the ·Cr-1mmal ·~e~tion of one
.,District Court to the Criminal .Section of another
bi.strict Court; '
(ii) from one Court of Ap·peal to another Court of Ap-
peal;
(b) the Couri o!Appeal may, within the l!mils of'its Jurisdic-
. · tion, 'in ·the ·interest of justice or public order and upon
, the request of the Office of ..the Attorn~y General or thi
 - 20 -
- 21 -
Section II
::!. For the pur,poses of this Code, unless lhe context otherwise
THE PARTIES
rrquires, the term «OJfice of 1he Att,omcy Gcineirah shall mean:
(a) the Attorney General or one of hi·s DepuU.es;
Article 12
(b) any PoJi.ce Officer representing the Attorney General.·
The Office of the Attorney General
(As substituted by Article I of Law No. 84 of 12.12.1972).
I. The Office of the Attorney General shall exercise the func- ' 4. The investigation and suppression of crimes shall be carried
tions laid down in Article 8 of the Law on the Organisation of the out by the Police under the direction of the Offi.ce of the .Attor-
. Judiciary and any other functi,qns conferred by Jaw, provided · that ney General.
in cases falling within the jurisdiction of the Nationa.J Security 5. When so considered necessary, the Attorney General may,
Court any reference to the Attorney· General or to the Office at any \tage of the proceedings, order that his own Office shall
..L. of the Attorney General in this Code or in any other law sh.all
be construed as meaning the National Security Court Prosecutor
take over the inve·s·tigation or the prosecution of any case .

or the Office .of the National Security Court Prosecutor.

• Notwithstanding the provi-sfons of thi.s Code or of any. NOTES
'. other law, the National Security Court Prosecutor shall have pow-
. ers of arrest, detention, sean:h and seques.tration o.f properties and (I) According to Article 8 of the Judiciary Law, it shall be
the duty of the Office of the Attorney General to ensure respect
any such powers which are giv.en to any Court, Judge .or to the . for the Jaw and to proted the rights of the .State, public 9rgans
I
. Attorney General by this Code &hall also be vested in the Na- and incapacitated persons. To this end, the Attorney General :
tional Security Court Prosec,utor. !'
•:
(a) shall · either directlv or through his Deputies or through
(As amended by Article 4 o,f Law No. 8 of 26.1.1970). ·Police Officers or ·inspectors authorised by law, inves-
2. In Court proceedings, the Office of the Attorney General shall tigate, institute and conduct criminal proceedings;
be re-presented by :
(b) whenever he considers that public interest is involved,
(a) the Attorney General or one of his Deputies, before the ~. . he shall institute and conduct, or intervene iin civi.l pro-
.1
Supreme Court; ' ,! . ceeding.s;
(b) the Attorney General or one of his Deputies or iri their (c) shall, as provided by law, prefer appeals in dvil and
a.bsence a Police Officer above the rank of Inspector, · criminal proceedings.
before a Court of Appeal;
(2) ~aragraph I of this Article as. substituted. by Article 4 o'.
(c) the Attorney General or one of his Deputies or a Po]i,c.e Law No. 8 of 26 January, 1970, requires the Off1c.e of t~e Attar
Of!.icer of and above the ra.nk of Inspector, before a Re- ney General to exercise the functions laid down rn Article 8 of
the Judiciary La,w and any other functions confer:ed. by law. It
gional Court. In case of necessity, the Divisional C?m- also declares tha·t in cases falling within the_ jur1sd1ct1on of the
mandant of Police may designate any Police Officer National Security Court the National Security Court Prosecu-
1
for this purpose: tor and the Office of the National Security Court Prosecutor. shall
have the functions of the Attorney General and the Office of
(d) the Attorney Genera.I ·o r one of his Deputies or the Com- the Attorney General res.pectively. It goes on to declare thai the.
mandan·t of a Police Station or any Police Officer desi- National Security Court Prosecutor s~all also have .power o ar-
gnat0ed by him, before a Dis!rict Court. rest, detention, search and sequestration of properties.
(As substituted by Arti<:le 1 of Law No. 84 of 12.12.1972) . ,3) Paragraph 2 of this Ar.tic)e has been substituted by :i:tic~e \·
of Law No. 84 of 1·2 December, 1972, and states w o s a 1,
 - 22 ~ -- 23
represent ·the Office of the Attorney Generai'.in Court proceedings accused has · been caught in _the act of committing an offence
before the. various Courts. . ··
(in flagrante delicto), the authorization shall be obtaine,d imme-
(4) Accordi~g to par~graph 4 of this Article, the investigation diately. ·
. and suppre_ss10~ of cnmes shall be carried out by the Police ·
under the d1rect1on of the Office of the Attorney General but under
paragraph 5, the Attorney General may, when so considered ne- NOTES
cessary, order that his Office shall take over the investigation ·or .
prosecution of any case. ·
(l) Paragrnph I defines an accused as a person :
, (a) ;Vh?,. even without any warrant having been issued by a
Article 13 JUd1c1al authbrlty, has been placed in a state of arrest
under the control of a judicial authority; or
The ·accused
(b) who has been served with a summons to appear before
Court. -
I. An accused is a person who, even without any warrant hav-
ing been issued by a judicial authority, has been placed in · a (2) Such a person shall continue to be considered as an accus-
state of arrest under the control of a judicial author°Hy, or who ed ~ntiL he is finally convicted or acquitted or until it has been
has been served with a summons to appear before Court. decided not to proceed with the case or untilthe decision to close
the · case is confirmed.
Such a person shall be considered as the accused during all
stages of the proceedings, until. such time as the judgment :of (3) , P~ragra,ph 2 o~ this Article de~:J.ares that the accused is pre-
convidi·o·n or acquittal has become ,f.inal, or until it has been sumed innocent until the conviction becomes final Ordinarily
decided not to proceed further with the case, whkh shall be equi- this wo_uld a·ppe~r to · be anomalous because once ~ person ha.;
been tried, convicted and sentenced to a term of imprisonment
v.alent to ·an· acquittal, or until the decision to clos·e the case is by a competent Court he may not be «presumed innocent» but
confirmed. according to Article 249 of this . Code, the convicted person is not
supposed to start serving his term of imprisonment until the
2. . The accused is presumed innocent until the · coFJv.iction has judgment ha·s become final, i.e., either he has not appealed
become final. · against the sentence or his appeal has been dismissed .
3. An accused, after Jiaving been finally conv.icted or acquitted (4) Paragraph 3 of this .Article contains provisions known as
or after orders not to proceed with the case have· been lawfully pleas of autrefois acquit and autrefois convict which mean that
' given, cannot be charged again on the same facts, even if those no one shall be punished or put in peril twice for the same mat-
facts may be regarded as constituting a different offence, ·except ter. Subject to the exceptions specified in paragraph 4 of this
Article and paragraph 2 of Article 77 of this Code, the effect of
under the provisions of the following paragraph of thi·s Article or . an acquittal or conviction is. conclusive and binding in all sub-~
/ · under the provisions of paragraph 2 of Article 77. sequent proceedings between parties to the adjudication. Shor-
4. If an accu.sed has been found guilty of an act which has tly sta,ted, the principle is that a person finally convicted or ac-
had a . con.sequence constituting a di.fferent and more serious . quitted cannot be tried for the same offence. The idea under-
offenc·e, then the accused can be char-ged again i·f such conse- lying this princi,ple is that a person should be prosecuted only
once in res,pect of a particular offence and when that prosecution
que,nce had not oc,curred. or was not known .to ithe Court ·at ,£he ends either in conviction or acquittal, it must receive finalit y as
. tirne of conviction . all proceedings must. The exceptions referred to above a re :
5. In those proceedings for which a written authorization · is (a) Paragraph 4 of this Articles: A person. convicted of any
necessary, such authorization shall be requested by the Attorney offence constituted by · any act causing consequences
General before any warrant is issued against the accused. Jf the which, together with such act constitute.d a different of-
fence from that of which he was convicted may after-
 - 24 -- - 25 -
war,ds ·be tried for such last mentioned offence, l,f the con- for recovery of damages from the accused for any civil llnblll!lc~
sequences .had not happened, or were not known to the arlsl'ng from the offence Instead of resortlng to u separate ci vil
Court to have happened, at the time· when he was con- suit. The procedure for the decision of the Court on the clajn1
victed.
of the injure,d party is provided for in Articles 130 and 131.

ILLUSTR.ATION: Article 15
The defence
X is tried for causi,ng very grievous hurt to Y co.n-
tra Article 440 (3) of the Pena) Code and convicted and
sentenced to 10 years imprisonment. As a result of 1. The accused may be defended by one or more defence Coun-
such hurt, Y dies. X may be tried again for the offence sels.
of murder contra Article 434 of the Penal Code.
2. In the cases indicated in sub-para·graph (b) of paragraph 2
(,b) Paragraph 2 of Article 77: This will be discussed later· at of Article 14 of the Law on the Organization of the Judiciary, th e.
the proper place.
Court shall appoint an. ex-officio defenc·e Counsel for the accused
I 5) According to paragraph 5 of this Article, it is for the At- whenever the a,ccused has not appointed his o~n defence Counsel.
forney General to request for any neces-sary authorisation to pro-
secute. This. should be done before any warrant is issued against 3. The appointment of an ex-officio .defence Counsel shall 111,ot be
the accused. In the case of f lagrante delicto, the authorisation refused without rea,sonable justificatio.n.
shall be obtained immediately. The cases in which the autho- .~
i ,

ris ation to prosecute is required ~re set out in Article 74 and ·,~·. .4. Where there ,is no conflict of interest, two or more accuse'd
\Vil! be dealt with there. ; may be represented by a single defence Counsel.
. '
5. An accused who has been arrested shall have the right to
Article 14 confer freely with his defence Counsel a.t all stages of the pro-
ceedings :
The injured party
Provided that in any proceedings which fall within the ex-
I. For the purposes of this Code, unless the context indicates clusive jurisdiction of the Na tiona I Security Court under Article
otherwi;se, the term «injure·d party» shall mean the person who 6 of Law No. 3 of 10 January, 1970: ·
is injured by the offence, or his legal representative . . (a) the accused concerned s.hall have the said right after
2. ·The injured party may apply to the Court in order to recov- the end of all investi.gations; and
er from the accused damages for any civil liabilities arisin.g from (b) while the accused confers wi:th his defence Counsel, the
the offence.
;,
Prosecutor of the Na tional Security Court or his repres -
3. Petitions under paragra:ph 2 of this Article shall b~ s~bmit- entative shall be present.
ted to the Court, in written or oral form, before the begin~mg ~f (As amended by Article I of Law No. I 7 of ?A.1970) .
the summing up of the case by the prosecution as provided m
Article 119.
NOTES

NOTES
(!) Every accused has· a rig~t ~o be d~fended by a Counsel
of his own choice. Of course, 1t is for him to arrange for one
· Paragraph 2 of this Article contains a useful provision. It or more Counsels he wants to eng.age for his defence: Jh.e
P.nables the injured party to apply to the Court trying the offence Court is only to afford him an opportunity to do so. But m en -
 - 26 - . '- 27 -

min~l procee?ings where the accused is charged with an offence

'·
:.: freely with his ,defence: Co~:nsel •in cases whi.ch fall within the
punishable wt.lh death, i.ll}prisonment for life or Imprisonment for exclusive jurisdiction of th~ ..National Security Court. These Ii·
more than twenty years, .1f the accused has not a·ppointed his own rnitations are that: ·
Couns~l, the Court shall appoint a defence Counsel for the ac- (a) .t.his right may be exerdsed at the ·end of all investi- .,
cus~d . m accordance with t-he provisions of paragraph 2 of this gations; · · .·'
Article a.s rea9 .with sub-paragraph (b) of paragraph 2 of Article
14 ?f. the Ju.d1c1ary . La,w. If the Court-appointed Counsel is not (b) the Prosecutor of the <~,ourt. or. his representative .shall
a c.1v!l serv-a,nt, his fee sha!J be pai,d by the State. .: be ·present when the il,'ccused confers with.. hfa defence
:Counsel.
(2) · In Criminal Appeal No. 92 .of 1970, Dubad Mohamoud Ja-
m~ and three others v. State, the Supreme Court decided that
.\~·liere defe.nce .interests of the various accused persons ani intrin- Article 16
s.1cally at variance or mutually irreconcilable, different defence
Counsels should be appointed. In this case,· the accused/appel- D"uties of the defence Counsel towards the accused
lants were all charged with murder. contra Artkle 434 of the
Penal Code and robbery contra Article 484 of the Penal Code · I. . A defence · Counsel shall not, without reasonable cause, aban-
before· the Assize Section .of the Burao Regional Court. They .,: .... don his duties as a defence Counsel nor a;bsent himself from hear-
were all convicted a.nd two of them were sentenced to death
and the other two to 15 years imprisonment. Their appeals to ings in Court in such a., w.ay that the ace.used is deprived of legal
the Hargeisa Court of Appeal were dismissed. · In both the ass-istance.
Courts only one defence Counsel was provided for all the ac-
cused. 2. If'°any deferice Counsel v.iolafos the provisions of paragraph I
of· this Ar,ticle, the Court' !11ay order that he:
In their a1p·peal to t.he Supreme Court, one of the grounds
was that the lower Courts had erred in providing only one de- (a) pay a sum of money not exceeding Sh. So. 5,000/- to
fence Counsel when the material evidence on which both Courts the accused as co.rri,pensation; an?
relied on was the confessions :by two accused which were admit-
ted adversely not only against them but also against their co- (,b) pay a sum of money not exceed:ing Sh. So. 2,000/- to
accused . The question was: were the lower Courts right in Jaw ·the State Treasury; or
in a,ppointing a single defence Counsel for all the appellants?
(c) · be sus.pen,ded from pracHsirng his profession for ·a period
The Supreme Court observed that both lower Courts had re- not exceecliing one yea·r.
lied heavily on reaching their respective decisions on the con-
fessions made by two accused implicating themselves and the 3. The abandonment . of his duties by a legal Oounsel for an
either two accused. Taking cognizance of the fact that each of injured party shall riot in any case prevent the proceedings from
the accused was charged with serious crimes and that each one continuin,g.
of them was all out to save his skin, it stands to reason to infer
that their defence interests were intrinsically at variance or mu-
tually irreconcilable. In these circumstances, to have complied
with Article 15 (2) of the Criminal Procedure Code and Article
14 (2) of the Law on the Organisati,on of Judiciary, the lower
Courts ought to have appointed different defence Counsels for (1) Paragraph I:· It will be:seen.f.rom this Article thaJ the laws .
the various accused. The case was accordingly remanded to Bu- attaches great i,mpor.tance .to the duty of a defence Counsel to
rao Regional Court for re:trial with the direction that the Court protect the interest of.' an accused persori .' Wilf.i.il abandonment
should a.ppoint separate d'efence Counsels for the accused. , of ,such a duty or .absence, in . such :a. w.ay that ..the accused is de-
prived of le.gal assistance, is made punishable under par,agraph 2.
(3) Par·agr.aph 5 of this Article has been amended by Article 1 (2) This paragrnph dioes not set out the procedure for tak!ng
o.f Law No. 17 of 7 A,pri\, 1970, by adding a proviso thereto the action against the defaulting defence Counsel. But as the obJect
effect of which is to J.imit the right of an accused person to confer is to ,protect the interest's. of an accused person, persu11_1ably the
 - 28 I
-·- 29 -
I i' '
Court shall move on !he complafn! of the accused who has been Chapter II
:feprived of legal assistance. But there is nothing in the word- '
;~ .
:ng. of the . paragraph .to de.~ar a Court from proceedi,ng to take
. action on its own mot10n without any compl,ain1 from the accus- INFORMATION, COMPLAINTS AND REPORTING OF OFFENCES,
ed person. ·
POLICE INVESTIGATIONS, SUPPRESSION OF OFFENCES
,,;
. (~) Whether an . ace.used person is deprived of legal assistance · Section I
by the. act or om1·ss.om of a defence Counsel is a quesHon to be
determined by the Court on the facts of each case. Though this INFORMATION, COMPLAINTS AND REPORTING
Article is sil~nt on this point yet in fairness the Court should give OF OFFENCES
a.n opportumty to the defaulting defence Cpunsel to expl.ain his
conduct before proceeding to impose penalties· set out in · p,ara-
grap·h 2. Article 17
Authorities to whom complaints and reports regarding
(4) Paragraph 2: This paragra1ph prescribes the following pe- offences shall be made
.r! Ji :ie:; on the defauJ.ting defo.m:e. Cuonsel:-
Information, complafots and reports of offences shall bC'
(a) a sum not exceeding Sh. So. 5,000/- as compensation
for the accused; and made ,to a Judge, to the Office of the Attorney General or to any
P,oli,ce Officer.
(b) .a sum not exceeding Sh. So. 2,000/- to the State; or
NOTES
(c) suspension from practising for a period not 'exceedi·ng
one year. This A;ticl'e enumerates the authorities to whom information,
com,plaints and reports of offences shall be made. These are:
(5) The word «and» at the end of penalty(a) and the word «or» (a) any Jud,ge, which ac·cord.in,g to lett€r (g) of ~rtic.le _3
at the end of penalty (b) above sugges•t that the Court may im- means any member of the Judiciary who exercises JUd1-
pose penaHy(a) and either of the p.enalties (b) or (c) and not all ci,al functions in a Court;
three nor (b) and (c).
(b) .the Office of the A.ttorney General, which according to
Artide 7 of the Judici.a,ry Law consists o·f the Attorney
16) I,t will be noted tJ1.at this Article is restricte? only to the General and his Deputies; and in cases falling within the
wilful abandonment of duty and a,bsence from hearings m Court jurisdiction of the National. Sec,urity c.o urt means the
of a defence Counsel in such a way t:hat the accused is deprived Of.fice of the Na,tional Secunty Court Prosff.utor accord-
of legal assistance but the unfaithfulness of advocates is made ing .to p,ara,gra:ph I of Article 12 of .this Code as .amend·
punishable under Articles 299 and 300 of the Penal Code. ed by Article 4 of Law No . 8 of 26 January, 1970,
(c) any Police Officer, which ex,pression is def.ined in letter
(7) An appeal aga,inst the imposition of penalJi~s under this (ib) o·r parag.raph 2 of Article 23.
pa~agr.a,ph shall l:e to the Gen~ral A,p.p~llate Section of the com-
petent Court of A,ppeal as provided for m letter (e) of paragraph
'] of Article 227 read with Article 228. Article 18
Reporting of certain classes of offences·
A public officer or a person entrusted wilh a pu,bl.ic service
who becomes .aware -Of the commission of an offenc~ In r~spect
of which pr.oceedings are ini,ti.a,ted by the State shall 1mmed1ately
report the offence.
 - 30 - -31-
NOTES ILLUSTR.ATION:

(1) This A.rticfo imp?ses a_duty on a pµblic officer ~r .a·. person (a.) X, an of;fici,al of the Office .of the Mag-istrate of Accounts
en~rusted W(th a .public service who is · aware o·f the commission of ' · dur.ing · an ins,pection ·of accounts comes to know of an of'.
an offen~e in r~s•pect of which proceedings are initiated by the fence of peculait·ion by Y but omits to re,p.or-t t10 the compet-
State to ~mmediately report the offence to the authorities enume- ent authorities. He commits an offen-ce under Article 282
merated in the preceding Article. of the Pena.I Code.
(2) . A «publk. offic_er» a~d a «person entrusted with a public (b) ~ut if. X in. the above illust:a!-ion while go-ing for a walk
service» are defined rn Article 240 of -the _Penal Code as follow:-:-
in the evening see Y comm1ttmg mu11der, he i•s bound to.
«ipublic ~fficer» n:ieans any person who, permanently or report tic the aompeterut authortiti.es under tih:is Article but if
tempoi:ar.1ly, gratuitously or for reward, volun,tarily or und- h~ omi·~s to .d.o so, there does not a,ppear to be any provis·ion
er obli,~a.fo~~· perfori:ns any public legislative, admini-s1r.a- e1.t.her in this Code or the Penal ·Code w.hich provides any
punishment for the o,mission. Artkle 282 of the Penal Code
fove or Judicial if.unction, on behaH or in "the interest o-f the
State or of any ot,her pu-bl,ic body»; is not ,applicab.Je dn such a case as the commission of the
<Gp er.son en.tr:usted ,;vith a pu.blic service» mea.ns any person . -offence -o:f murder by Y is not one of which X has harl
who, ~ot being a publ-ic o.ff:icer, permanenily or tempora.rHy, knowledge «in the exerdse o.r by reason of his function ».
~ra.tuifously or _for rew,a rd, voluntari.ly or under obligation,
is. entrusted by the State or any other pubJ.ic body with the
per.fo.11mance of any publk service». . Article 19
(3) The duty · to re,port imposed under this Article relates to thr Reports by members of the medical profession
offences in res•pect of which proceedings · are · in-itia,ted by the
State. ~o,w 1 :,vhat. are these ~[fences? This is not specifica.Jly A member of the mediical profession who renders professional
stated either m this Code or in the Penal Code. How·ever, in
respect of certain offences H is stated in the Penal Code that a srevices to any person who .a·p,pears to have been invol ve d in an
pr}vate in~ividu_al, by complaint, can initiate criminal pr-oceed- of.fence in· res•pect of which proceedings are initia·ted by the Sta.tt'
mgs. If, in res-pect of any of-fence it is not so stated then it shall re•port the matter immediately . This provision shall not
is understood that such an o.f.fence is · one in resipect of which ap-ply when the report would expose the person assisted to crimi-
proceedings are initiated by the State. nal proceed1i~·gs.

ILLUSTRATION: N O T ES
X assaults Y. According to Artic•le 439 of the Penal Gode, (I) The preced.in,g Article imposes duty lo report certain offen-
proceed,ings may be initiated against X on the complaint of Y.
The .very next Art·icle 440 dealing with hur.t does not sa.y anything ces on pubJ.ic officers a,nd pers.ons entrusted wil'h pubJ.ic services.
about a c,omplaint by the injured party. This means that the Thi,s Article imp,oses such .a duty on a member· of the medic.al
of.fence o-f hurf is one i-n res1ped of which proceedings a.re initiia- profession-who ren-ders prdfessi·onal services to a.n,y person who
ted by the State. a,ppear·s fo have been -i1nvolv,ed in a.n, offence in resp-ect of which
proceed·ing·s are ini-tia,ted by the Sta;te. We have already discus -
(4) We hav~ seen in Note (I) above that this Article imposes sed in Note 3 under Article 18 as to what is meant by the phrase
.a duty to immedi,ately report certain offences but what is t<he pe- «offences in res,pect of which proceedi,ngs are inHiated by the
nalty if a public offocer o.r a perwn entrusted with a publ-ic ser- State».
v.ice omits fo do w? Article 282 of the Penal Code iis relevant
on .the_subject but is confined to offences of which a public o.ffi~ (2) It is s,pecifiically provided in the 1.ast sentence of this Arti-
cer or a person entrusted with a public service has had knowled - cle that "the reporting shall .not be required when the report woulct
ge in the exercise or by reaS10n of his fundion. expose the assisted person to criill"!inal proc.ee.din-gs \,

.,..
 -- 32 - 33 -
ILLUSTRATION: ',: 22 Dcc,ember, 1962) . The omiss:i-on to report is punfah.able with
impri.sonment uplo one year or fine from Sh . So. 100/- to
X cau~es hurt to Y wi,thi·n the meaning of Article 10,000/- under Article 283 of the Penal Code.
440 of the Pena-I Oode. As we have seen in t·he illu-
stration to .Note (3) under ArHcle IS, this is an offence (3) It will also be. noted that in paragnaph 2 of this Article, the
in respect of wh.ich proceedings are initia-ted by the Sta- reporting of the offence by a person is not compulsory. Unlike
te. Z, a. doctqr, renders prof.essi,onal services to X who Articles 18 and 19 and pa.ragna,ph I of this A,rt.icle wherein the
hi,mself su.fifered some ·injury in the a:f.fair . Here, Z need word «sha.11 » is used , in thiis paragnap.h the words used are
not report the offence beoause H is Hable to expose X to «may report th>e offence» .
criminal proceedings.
(3) Omi,ssion to report by members of the medical profession is
punishable under Artkle 284 of the P·enal Code. Article 2 I
Complaints
Ar,tide 20
Reports by the public
I. The per.s1on injured by an offence otiher tha,n those for which
~. proceedings are inHiated by the State may submit a comipla·int
~· for the institution of proceedings in aocordance wJ1th the provi-
I. Every citizen who has knowled,ge of the c,omm1ssaon of an sions of Article 84 of t,he Pena I Code.
offence .against the Persona.Jity of the State for which the law
prescnibes the punishment of death or life imprisonment shall 2. The r.i-ght of making complaints may not be exercised when
t-he injured party hias :
immediately report the of,fence .
(a) expressly or tacitly renounced ·such ri·ght;
2. Any person , 'even if he is not the injured pa.rty, who has
kn,owledge of !·he commi,ss1ion of an offence in respect of which (b) started c,iv,if proceedings for res·Litution or recovery of
prnceeding.s n~e initiated by the State, ma.y report the offence. damages;
(c) •reached a settlement of the damage arising from the
NOTES <>ffence.

(I) The two last preceding Ar,ticles impose duty of reporting

certain offences on cert,a·in classes of pe.rsons. P.arasgraph I of NOT ES
this Art.icle maikes i,t obli,g,atory for every oi:tizen who has ~now-
ledge of the commis,sio~ of an offen~e a;gai,n~t the Personal!ty of
the State punishable wu-th dearh or life 1mpmonme~,t, Part I of (I) Ae- state,d in Note (3) under Arti.cle 18, in r~s,pect. of .c~rf.a,in
BOOK II of the Penal Code enumerates the v,anous offences offer~es, it i,s stated in the Pena.I Code that a pnvate 1~d1v1d~al,
against the PersonaJ,i,ty of the State but the. r~portin,g by every . by r ,m ?Laint, ·ca,n i:nH,ia te criminal proceedings. This Arb.cle
citizen w.ho has the knowledge of the comm1ss,1on of a,n off~nce giw·· ~1,e person i,njured by an offence (othe.r than tha.t r.or wh·1ch
is requ.ire.d only in. those cases where ~he punishment ·prescn:bed . pror~Pdings are initJiated by the Sta,t·e) the nghit to submit a C?m·
is death or !He impntsonment, e.g., Article 184 (Attempbs against plaht Accord,in,g to Article 84 of the P,enal Code, the time
the integrity, independence or unity of. the Somal1i S~a.te) and Ar - limif for making a compla1int is .one month f1rom the ~ate when
ticle 185 (Citizens who bear arms ag,ainst the Somali State) . the . ad cons>titutin.g the offence 1s broug.ht to the notice of the
injured party.
(2) It w.il I be noted lha l the dut~ i:mposed in pariagrnph I of
lhis A.rtide is on .a,ny dtiz.en a::. d1st,11nd ·from any person. Wh:i (2) Pa.r.agraph 2 of this Article enunciates t.he · circumstan~es
is a citizen is ex·plained in the Cilizensh+p Law (Law No. 28 of whkh woul·d amount .to waiv,Lng the right to make a complaint.
,·

f
 - 35 -
- 34 -
These are:· Sect.i.on II
(a) renoundng such right expressly or POLICE INVESTIGATIONS
imp.Jd.edly;
(b) starting dvi I proaeedin.g for resiti.tu,tion
diama:ges; or recovery of Article 23
(c) reachipg a se.ttlemeni of the Definitions
damage ariis,ing from the
offence.

I. For the plllr.poses of this Code, unless the conte xt indicate s

JI.;LUSTR.ATION: otherwi,s e, the term «Po!ke» shall include :

(a) the Police Force;

X assaults Y within the meanih,g of Ar.ticle 439 of the
Penal . Code. As5ault is a,n offence which requi.res a corn- (:b) (Deleted by Article 2 of Law No. 84 of 12.12.1972);
. pl~i.nt, by the . inj~red party before crimi,na,l proce~d,in,gs are .(c) any other military or para-mjlitary Service and any civil
·in1,t1,ated. Y receives from X S,h. So. 500/- in settlement o,f org,an of the State which is required by law to collect
the damage a,risiing from the oHence. Y shal,l have no right
to make complaint in respect of the offence. · inforrnatio,n about,. and to enquire into, specified typ es
of offences and to provide the proof necessary fo r th e
a,pplication of the penal I.aw. ·
Article 22
Form of the reports , information and complaints 2. For t·he purp,oses O·f this Code, unless the context indicates
otherwis,e :

I. Information, a repor,t or C·ompl,ai,nt relating to the commi,s- (a) the term «Poli-ce Station» shall include a territorial or
s,ion of an offence may be in wri,tten or anal form and : · special unit of one of the Forces or Services referred to
in paragraph 1 of this Article;
· (a) if in written form, shall be si,gned by the person con-
cerned; {b) the term «Polke Officer» shall mean any member of the
Police Force.
(b) if in 01ral form shall , by the authority receiving it, .be :

(i) recorded ; (As amended by Article 2 of Law No . 84 of 12. 12.1972i .

(ii) rea.d over to th e person concerned ; and
(iii) signed by such person.
NOTES
2 · The prov.isions of the preced,ing par,agra.ph shall be observed
in ·SO far a.s ap,plioable t•o the wHhdra wal of the complaint' or the
rer'usal to accept the withdrawal of the complaint. An example of letter (c) of paragraph I of this Article ma y
be a customs officer who·, according to Article 41 of th e Customs
Law {Legi'!>lative Decree No. I of 31 March, 1961) shall have,
for the purposes of carrying out the provisions of the cL1s!oms
laws, the same powers, authorities and privileges given by law
to Po,llce Officers.
 ~- 36 - - 37 -
6. A PoHce Of.f.ioer investigating an alleged o.ffence may requi-
re a,ny per,son to execu,te a bond conditio-ned on his due a.tlendan-
Article 24
ce in Court if and when required to attend and ,any person who
Investigations f ai-ls to comply with such a ·requ,iremen:l shal.l be guilty of -an
off.mice punishable with fone not e.xceedimrg Slh. Si. 500/- or
1. A Police Officer in charge ·of a Police Station who receives i.m.prisanment ihot ·excood.i.nig one month or both such fiil1e and
in the manner ·provided Jn the previous Section or in any othe; 1m P'risonment.
i way, information rela.ting to .the commision of an offence sha,11
immediately : (As amended by Article 3 o-f Law No. 84 of 12.12.1972) .

(a) notify the OU.ice of the Attorney General a,nd the com- NOTES
petent Court;
(b) conduct, eHher personally or through his suhor,din,ate.s, (I) Paragra.ph 1 of this Article imposes a duty on a Police
such investiga,tion of the alleged offence as he shiall Offker' in charge of a Police Station who receives information
consider necessary. relating to the commission of an offence to immediately notify
the Office o-f the Attorney General and the oompetent Court and
2. The Police Officer who undertakes the i·nvestigation may : to con-duct invesUg,ation of the alleged of.fence.
(2) The Code does not define what is meant by the ex,pression
(a) ex,amine any person whom he believes to be acquainted «investigation». Generally · speak.i-n,g, investigat.ion cons:ists of
with any of the oi1rcumsta,nces of the case; and !he,following S1teys:-
(b) record, i•n accorda,nce wiiotll the provirsions of sub-para· (a) proceeding to the scene of the offence; .
graph (b) of Article 22, any statement made by any (b) ascertainment of the facts and circum:.tances of the
person so examined. case;
(,c) discovery and arrest of the suspected offender;
3. No s.ta.lement . recorded during the course of the inves.ti:gia-
tion shal,1 be used i'n any cr.iminal proceedings agains:t the per- (d) collection of evidence relating to the commission of the
son making the statement un)e&s iit faLls w.ith:in the meaning of offence which mi'!Y con.s.ist of :
a confession as provided in this Code. (i) the examination of various persons acquainted w.ith
the circumstances of the case; and
4. When, during the course of investigation, it appears neces- (H) the searoh of p),aces or seizure of things consi'dered
sairy to obta.in a warrant of arreSit or searc.h or seizure, the Po- necessary for the invest.ig,ation and to be produced .
lice Of.ficer underta,kdng the i·nvestig,ation shall a,pply to the com- a.t the t.ri,a.J.
pet.ent Court for such warr,ant, at the same time informing the (3) Under ,p·aragra,ph 2 of this Article, the examination o'.f per-
Of [ice of the At.tomey General. sons acquainted with any of the circumstances of the case 1~ not
compulsory nor any statement made by any . such per.son 1·s to
5. In case of urgent necesS'ity the Police Officer undertaking be compµlsorily recorded. The word used ·1s «may» and not
«shall». ·
the investigation may, wi:thout a warnant:
(4) H will also be noted tha.t the Police Officer may examine
(a) arrest a person suspected of committing a crime, in «any person» whom he. believes to be acquaint~d v:ith a-ny of
a.ccorctance with Article 38; the circumstances o-f the case. The wnr.d «.any» 1s wide and ge-
neral, and as such, the ex,pres,sion «any person» may i,nclude not
(b) under,Lake a search or seizure, in accordance wi,th Ar- only a witness but also a person sus.pected or accused of the
ticle 58. offence.
 - 38 - - 39 -
(5) The purpose of paragraph 3 of thi:s Article is to protect the Airticle 25
person who may be required to make a statement before the
Police Officer during investigation of offences under this Article. Diary of investigation
It forbid·s the use of such a statement against the person making
it unless . it is a confession within the meaning of Article 149.
As will be seen later, a confession duly recorded by a Judge in l. The Police Officer undertaki,ng the inv~stigation shall dail y
accordance with Article 68 is admissible in evidence if it is made . record the detai,Js of the inves.tigation, in the appropriate diary,
without any inducement, threat or promise except i-n cases mentioning specifically:
falling within the jurisdiction of the National S,ecurHy Court
(Articles 150 and 151):
(a) the da,t.e of the beginning and .end _of the investigation :
(6) Par·agraphs 4 and 5 deal with the arrest or search o•r sei- (b) the action ta.k,en during the investigation;
zure during investigation . Normally, .a warra-nt from the oom-
petent Court is required but in case of «urgent necessHy» the (c) the circurrns~,ances aris,ing from the investigation;
Police Officer undertaking the investigation may, without war- (d) the evidence obt.ained .
rant, arrest a per.son suspected of committing a crime (Article
38) and undertake search or seizure (Article 58). What is an
«urgent necessity» depends on the circumstances of each case. 2. Any warr.ants or orders received from any superior, a Court
or the Office o.f the A.ttomey General, shall likewise be recorded .
(7) I-n the case of arrest without warrant, the grounds of urg-
ent necessity according to Article 38 are:
(a) the person to be arrested has committed an offence pu- Article 26
nishable with imprisonment exceeding ten years or with
heavier punioshment; Closure of investigation
(b) a warrant of arrest oannot be obtained in time or it i·s
likely that the person to be arrested will not be foun.t:l I. Police investigaf.ion shall be brought to a conclusion without
if he is not arrested immediately; any unjustifJed delay.
(c) if the person against whom a s-ummons to appear has
been issued and who having been lawfully requested by 2. The Police Officer in charge of a PD!ice St,ation, as soon
a Police Officer to provide personal details : as the investigation has been concluded, sh.al! prepare an accu -
(i) refuses to provide full personal details together with rate repor.t oontaining :
hii.5 address;
(ii) provides such .detai].s which the Police Officer (a) the facts o,f tihe case, and any surrounding circumst,an -
requesti.ng them has groimds to bel-ieve to be false. ces which may affect the criminal proceedings;
(8) In the case of search or seizure without war.rant; the (b) details of . the evidence obtained;
,g-rounds of urgent rnecessity according to Article 58 -ar,e tha;t
during the time require.d to obtain s,uch warraint: (c) person•al deta,ils or any other information u·seful in i.den -
tifying :
(,a) material evidence may be destroyed or altered;
(b) the wanted person may abscond. (,i) the acx:,u:sed;
(9) ·Paragraph 6 has been a-dded by Article 3 of Law No. 84 of (ii) the injured party;
12 December, 1972. I1 would en.able a Police Officer Investigat-
ing an alleged offence to require a possible witness to execute o (Ill) any person havlng lnformatlon concerning lhc·
bond for ills allcndancc In Court If and when required. circumstances of the of.fence.
 - 40 - -41-
3. The report called for in the preceding pairagra.ph shall be PART II
sent forthwHh to the Of.fice of the Attorney Genera-I together
with : METHODS OF SECURING THE APPEARANCE OF ACCUSED
(1a) the inves·tigation diary; PERSONS IN COURT
(b) t·he records reliating to the investigation;
Chapter I
(c) material objects seized in the course of the invesUg.a~
tion. ARREST

Section I
Section III
ARREST LN GENERAL
ASSISTANCE IN THE SUPPRESSION OF OFFENCES
Article 28
Article 27 Arrest
Assistance from members of the public
An arrest, with or without a war-rant, may · only be made In
Every person, 'when lawfully and rea.sonably ,S'O requested, those cases and in the manner expre.ssly provid~d by law.
in case of urgent necessHy shall lend assistance to a Judge, to
the Of1k·e of .the Attorney Genera.I or to a. Police Officer, in
crder to: NOTES

{a) take into custody or prevent the eooape of ainy person There is no deHnition of the expression «arresh in the Code.
whom the sai,d authorities are authorized to arrest; Acco!ding to Black's Law Dictionary . (4th Edition, page 140) ,
physical seizure of person by arrresting o,fficer or submission to
(b) prevent or SUJJ}.press an offence. officer's authority and control is necessary to constitute an «ar-
r,est». The mere pronouncement of the words of arrest i,s not
NOTES an arrest unless the person sought to be arrested submits to the
process and goes with the a,rresting officer.
(I) Whereas Article 20 imposes a duty on the members of the
i public to rej}Ort the commission of certain offences, this Article
I ·-.·· . calls f.or their ass.istance to the competent authori:ties: Article 29
' Execution of arrest
(a) in arresting or p.reventing the escape of any person
whom the authori-ties are authorised to arrest;
(b) in preventing or suppressing an offence. I. A perison to be ar,reStted shall be so informed, together with
the reasons for the arrest.
(2) Of course, the request for a,ssis.tance must be lawful and
reason,able. No o-ne i,s bound to obey an illegal and unreasona - 2. If the per,son to be arrested :
ble demand for ,a,ssistance. Obvfously, the law d:ocs not intend
that the authorities mentioned in this Article s.hould have gene- (a) forcibly resists the anres.t;
ral power of calling upon member,s -0f the public to join them
i,n ,doiing the wor,k for which .they are ;pa;id. (:b) attempts to escape,
(3) Refusal to lend assistance may be punJshable under Arti- the person making the arrest may use .all lawful means necessa-
cles 505 and 507 of the Penal Code depending on the ci.rcumst- ry to effect the arrest.
a nces of each case.
 - 42 -
- 43 - ,
3. A person arrested shall not be subjected to more restr,ain,l
than is necessary to prev,ent his escape. 2. If the person in charge of a place refuses to allow such
entry, forc·e may be used :to effect the entry .
4. If it is absolutely certai.n that an arr-est was m.ade by mis-
tske, the person arrested shall be ;released immediately, even
by the perso,n who carried out the ar,rest. 3. When the place to' be entered under this Article is occupied
by a woman who who according to custom doe>s not ap1pear i,n pub-
li,c, the person i,ruten,ding to make the a.rrest s~all, before entry.
allow suoh woman every reasonable o,p·portunity to retire to cJ
NOTES
suitable place or t.o oover herself adequately.
(I) This Article describes how the arrest is to he effeoted. The
person anested shall be informed of the f.aot of and the ,reasons
for the arrest. It i,s on'ly where the person to be arrested forcibly NOTES
resist,s the .arrest or attempts to esca,pe that the person making
the arrest may use all lawful means ·necessary to effect the arrest.
(2) Also, once a person has been arrested, he shall no.t be sub- (I) This Article empowers a person. authorised by law to arrest
jected to more restraint t·han is necessary to preven,t hi.s escape. a person . under certain circums.tances to enter without warrant
(3) This Article further provides that the arrested per.son shall any place, (including a dwelling house) where the person to . be
be released immediately if the anrest is found to have bet!n made arrested has taken refuge if there is an urgent necessity to do so
by mistake. This could be done even by the person who had and a s·earch warr.ant cannot be . obtained without giving an
carried out the ar,rest opportunity to the persQri. to be arrested to escape or destroy or
(4) Re,porHng of arrest .a,nd the release of a:rrested persons are interfer,e wit'h the items of evidence.. Force may be us,ed to effect
provided for i,n Artfole 33. the entry if .the person in cha.rge of the place refuses to allow such
en.try.

(2) Paragraph 3 is to protect the pr_ivacy .of a woman who

Ar.t,icle 30 according .lo custom does ~ot appear vn pu?llc. In such a ca~e,
Entry into private places for the purpose of arrest every reasonable opportunity shoul.d be given to. her to retire
. to a suitable pl·ace or to cover herself before entering.
J. Whoever i.s authorised by law to arrest a person on the
g,rounds of :
Article 31
(a) .such person bein•g caught in the act of oommitting an Search of arrested persons
offooce (in flagrante delicto);
(b) .a warr,ant of arrest, 1. A person making an arrest may search without warrant:
mcJy enter without warrant any .place, inducting a .dwelling house,
where the person to b·e arrested has taken refuge, provided: (a) -the person arrested;
(i) there is an urgent necess.ity so to do; and (b) the place in' which such ar.rest was made;
(ii) there are grounds for belief tha.t a search warrant (c) ,any place which the person to be arrested entered while
cannot be obtained without affording the person to trying to evade a.rrest.
be arrested the o,pportunity to esoa·pe or the oppo,r-
tunity lo destroy or interfere with items of evidence. 2. A person mak,ing a s·earch may seize any ~rticle found on
(As amended by Article 4 of Law No. 84 of'12.12.1972). the per.so.n arrested or in the place searched which may be used
as evi den,ce in the case.
 - 44 -· 45 -
Section II
Ar,ticl,e 32
,Provisions · relating to arrest to be strictly observed
ARREST WITHOUT WARRANT

I. A Judge to whom an arr,ested per,son is taken, in accorda,nce

with Ar,ticles 39 and 45, shall enquire' whether: Article 34
(a) the provisions qf Sections II and III ·of this Chapter, Person who may arrest without a warrant
were strktly followed in makii,ng the · arrest; ,an.d ,. ·
I. A Jud1ge, the. At.tomey General and his Deputies a,nd a Police
(.b) there ha.s been any unju,~ti;ffable deJ.ay i,n bringing the
Officer may anrest without warrant, · irn ,accor,da:nce with the ·
·arrested person before him.
provi,sions of tbi:s Section.
2. If the Judge finds any violation of the said prov1s10ns or
finds unjustified del.ay in the presentation of the arrested person, 2. A priva.te person may arrest without wa,rrant i·n the cases
he shall : i·ndka.ted in A-rtiicl:e 35.. A pr:iv,ate person who makes such arrest
&hall immedia,tely take the a.rrested person to a Police Officer.
(a) cause criminal proceedings to be insU.tu,ted ~gains~ the
person r.espo.nsible, if such violation or delay .a:moun.ts to
an offence; Artide 35
(,b) order that di·se:i:plinary ,aoUon be taken by the competent Mandatory arrest of persons caught in the act of
au.thority agia,inst the person responsible, if the vi.ol;a- committing a crime 1 (in f lagrahte de lie to)
tion or delay does not amount to an offence.
A per.son sh,all be arrested wi,thout warrant H caught · in the
N O·T ES act of commitH.n,g (in flagrante delicto):
This Article imposes a duty upon the Judge before whom (a) any offence, au.empted or commitbe( :aga1nst the Person-
an arrested person is produced to ensune that the p,rov-isions
contained in Ar-ticles 34 to 45 are strJc.tly oomplied with in mak- ality of the State for whidh the punishment i,s imprison-
ing the arrest and that there has been · no unjustifiable delay in ment 16r a more serious pun.i.shment. (PART I of Book .
bringing the arrested person before him. lf there is found to II of the Penal Code as amended by Law No. 2. of
be any violation of the said provisions o.r unjustifiable delay in J•0.1.1970);
pro.duci,n,g the ar.rested person, crim.ina,l yr~edings shall be
instituted a.gainst the person responsible, tf this amou~ts to . an ..(b) ,any offence, ·a.ttempted or committed, Of :
offence, otherwise d,iscipl.i.n,ary action shaH be taken agams.t him.
(i) esaa1pe from !,awful custody (Article ?05),;
A,,rtide 33 (·iri) dev,asta,tion and pillage (Ar.ticles .224 a,nd 324);
Reporting of ,arrests
(iii) .sliaught,er (Article 222);
Everv Police Officer in carge of · ;a Police Sta,tiQn shall (iv) knowiingly causing epidemics (Article 334), pois-.
immediat~ly r~ort to tli.e Office of .t,he A,ttomey General and to oning of wa,ter or f.ood (Article 335);
the competent Cour.t :
(a) the . arres·t of any person; a,nd (v) aarna,l violence (Artide 398), act ·of lust ·commit-
(b) the release of ,a.ny a.rrested person, ted w,i,th violence (Article 399), .unnatural offen~es
committed with violence (Ar,ticle 400), abduction
which takes pl,ace within the limits of the area of his command for pur.pose of lust (Article 401.);
stating the reasons therefor.
 - 46 - - 47
I
. (vi) abo,rtion wi.thout consent (Article 418);
Article 36
(vii) murder (Article 434), inf.antidde (Ar,ticle 435), Discretionary arrest of persons caught in [la.grante delicto
death caused to a person with his own consent
with aggravating circum:st·ances (Article 436 (2) ) , 1. A p~r&on may be ar.rested wit.'1out warrant when caug.ht in
grievous or very grievous hurt (Article 440 (2) and flq.grante delicto f.or a111 offence:
a.nd (3) ), preterintenHonal homicide (Article 441),
affray with aggr,avating circumstances (Article (a) puni,shable wi,th maximum imprisonme.nt of more lhan
444 (2) and (3) ) ; one yea1r or with a heavier penalty;
(f~r example, hurt (Artide .44.0 ( J) )
(viii) insult with aggravating drcumstances in respect
of which ,proceedings are initiated by the State (b) punishable with imprisonment and the offence rela.tes to:
(Article 541 (2) (c) a·nd (d) ) ; (i) drunk,enness (Arhiclies 413, 414 and 415);
(ii) firearms, ammunition and explosives (Articles 325
(i~) reduction to slavery (Article 455), dealing and
and 540 (2) of the Penal Code and Articles 34 and
trading in slaves (Article 456), en.forced subjec-
tion (Article 458); 37 of the Public Order Law No. 21 of 26.8.1963);
(iii) games of chance (Articles 553, 554 and 555);
(x) seizure of a person (Article 460); . (iv) unjustified possession o.f :
(xi) t.heft in respect of which proceedings are initiah~d valu<1bles (Article 543);
by the State (Articles 480 and 481), robbery (Ar- animals (Article 544);
ticle 484), extortion (Arti.cle 485), kil!,ing or injur- altered keys or pick-locks (Article 542);
:ing of animals beJ.onging · to another in res-pect
of which proceedings are initiated. by the State (v) harmful substances or narcoUc drugs (Articles 340,
(Article 494 (2) ) ; 34!, 342, 343 and 564 o.f the Penal Code and Law
No. 46 of 3.3.1970):
(c) any other offence for which the law prescri:bes mandato- (c) punishable with impri,sonmen.t ·where the offence is com-
ry arrest of .a person caught in flagr,ante delicto. mitted ·by:
(i) a ,person released on bail;
NOTES
(ii) a recidivi·st und~r the terms of Article 61 of the
Pen,al Code;
(1.) Whereas Ar.ticle. 34 enumerates the persons who may arrest (d) foir which .arrest without w,arrant is a,u,thorized by law.
without warrant, t.his Article enumerates the offence,s for which
a person shall be arr,es1ed wilhot w.arra111t i.f caught in flagrante
· deliclo . 2. In the cases referred to in the pr,eceding par.agraph, where
t.he offence may only be p,roseouted on the complaint of t·he Lnju .
(2) For ease of reference. the relevant Articles of the Penal: Co- red party, ar,rest in flagrante d~lido may be ma·de when the
de have been shown in brackets after each of the offences s.peci- injured party repor.ts to the nearest Judge, Office of the Attor -
fi,ed in the text of this Article. ney General or Police Officer that he has the intention to m~k,,
(3) The expr·essioo «flagrante deli'cto:.> is defined in Article 37. a complaint for such offence,
 -- 48 - - ·- ~9 -
NOTES Mticle 38
Arrest of persons suspected of hnvlni:r committed nn offence
(I) Whereas Article 35 enumerates the offences for which a per·
son sha.11 be arrested without warrant if caught in flagrante de-
licto, this Article enumerates the offences for which he may be A Police Of.f,iicer may arrest a per.son without wa.rran.t:
ar.res~ed
I
wit-hout warrant ii caught in flagrante
•
delicto. ·
(1) in case of ur,gent necessi.ty when there are grounds to be·
(2) For ease of reference, the relevant provision of law has been lieve that :
shown in brackets after each of the offences specified in the text
of this Article.
(,a) the person .to 'be ,arrested ha,s committed ,an offence
for which the maximum punishmen.f i:s imprioonmen1
for more than ten years or a heavier punishment;
Article 37
Definition of «f lagrant.e delicto» (b) a warirant of arrnst cannot he obtained in time or it
,is likely tha,t the pefS'on to be arrested will no,t be found
if he is not arrested immediately;
I. For t.he purposes of this Code, unless the context· indicates
otherwise, the expression «a person caught in flagrante delicto»
shall mean a person who : (2) under the · provis,ions of par:agra.ph 2 of Article 50.

{a) is caught in the ad of .committing an offence; (As amended by Article 4 of Decree . La'Y No. I of 17.2.1968
converted into lia,w by Law No. 16 of 30.5.1968)'.
(b) is pursued, immediately a.fter t.he commission of the
of.fence, by :

(i) a Poli1ce Ofiicer; or NOTES

(ii) an injured pa,rty; or

(I) We have seen ,that Article 35 provides for mandatory ar-res·t
(iii) ,a.ny other person; without warrant and Article 36, disoretionary arrest without war -
rnnt, in cases of persoos caught in flagrante delicto. Th.is Arti.
(c) is caught, immediately .after the cvmmission of the cle provides for a,rnest wHhout warrant in case of urgent neces-
offence, with objects or traces which clearly show that sity even i!hough t1e p,erson to be arr,ested is not caught in f la-
he committed the of ~ence. grah.tvi delicto iin respect of off en<:.es" for which the maximum pun-
ishment i·s imprisonment for more than ten year.s and a warrant
of arrest cannot be obtained i.n time or i.t is likely that the per-
2. The .following ·offences shall be r-egarded as committed in son to be arrested will not be .foun,d if not ,arrested immedi·ately.
flagrante delicto:
(2) Also, a Police Officer may, under pa,ragraph 2 of Article 50,
(a) ainy permanent offence until such time as the perma- arrest without warranit any person who·, having been lawfully
nence of the offence h.as ceased; requested to provide his personal details :
i
\ '
(,a) refus~s to provide such personal details; or
(b) escape from lawful custody until such time as the fugitive
has be,en .arrested or surrenders. (,b) provides such details which the Police Officer has
grounds to believe to be false .
 - 50 - -- 51 -
/

the Judge shall order t11e immediate release of the person

Article 39
arrested; '
Person arrested without warrant to be taken before a Judge
(c) in other casies shall confr.im the ar,rest a.nd remand the
I. A person arrested wi,thout wanant shall be taken immedia-
ar,res.te.d pernon to custody, in accordance with the pro-
tely, and in any ca.s,e not later than 48 hours from the time of hirs vision o.f Ar.tic.le 46, unless he rel,eases him on bail i,n
a,rrest, before the competent Court or before the Court nearest to acc.ordance with Ar:tkies 59 a.nd 60 .
the place of arrest: provided that the time necessary to travel
to .the :Court from the pl,a.ce of arrest shall not be i,ncluded in the 4. If the arrest i.s not con.firmed by the Judge, within a period
48 hours. of 8 d,ays fr.om the day when it took place, the arrest shall be
~orisidered as rescind,ed an.d the :ures,ted person shaU be released .
2. A Police' Officer taking an arrested person before a Ju:d,ge
shall, a.t the same time, pr,epare and submit to him a summary 5. In the cases referred to in sub-pa,ragr.a.ph (c) of paragr,aph 3
report showing : of this Article, the Judge shall :

(a) expl·a-in to t:he person arrested the su.bs,t,ance of the

a) the facts of the case and the reasons for the arrest; charge;
(b) deta·ils of the evidence obtained;
(c) when pos;5ible, the personal detaiJ.s o.f: (b) inform the arrested per,son that, at .the present stage of
the proceedings, he is 111ot required to make any state-
(i) the arrested p,erson, ment, but that a111y statement w.hich he dves make may
(ii) t.he <inj urnd party, he used as evi,dence against hi.ni;

(iii) an'f .pers-on havin,g informaticm concerning the (c) record any s.t.atement made by the arrested per.son.
circumstances of the offence.
6. A Judge shall not questi.on the arrested person unless:
3. Having ex,ami·ned. the summary repor,t, the Judge :
(a) the arrested per,son wishes to m:.ike .a statement; and
(a) if the case falls wilhi.n the provisions of paragraph 2
(b) any ·such questions a,sked by the Judge are for the pur ·
of Article 70, shall order that no proceedings shall be
pose of clarifying any statement so made by ·the arrest-
insti,tuted against the person arrested, in accordance wHh
ed person.
the provi.sions of Article 77, a.nd order the immedi-ate
release of the per,son arrested;
7. Any measure t,aken by a Judge in accordance with the pro ·
(b) if : visions of .this Article sl1all be immedi.ately notified, by the Police
Offic,er who has ,brought the arrested p,erson before the Judge, to:
(i) the offence oommitt.ed is one for whi:ch a warrant of
a.rrest oannot be issued in accordance with the pro-
visions of Articles 42 and 43; or (a) the Office of the Attorney Gener.al; and

(ii) the arrest was not carried out in conformity with (b) the competent Court. if the arrested person had not
the provisions of Articles 35, 36, 38 or 50, been brought before a Judge of such Court.
 '"" 52
(.a) an oHence was not commi.tted;
NOTES
(b) .tile offence was 110! co1n1ni,llcd by lhc .arrcslcd person;
(c) lhe arrested person i,s not li·able be.cau,se:
,. ( l) Paragraph I: Law is very jealous of the liberty of people
i ~.nd does ~ot al.low detent.ion. un\es,s there i,s a leg.al sanction f.or
"· So, this parag,raph requires that a parson arres,ted wit)1ou·t (i) of total ment,al def-ici:ency (Ar·licle 50, Penal Code);
t'arrnnt un.der the provisions of thi,s Code shall be taken before
,he coi:ipeten'. Court or .before the Court nearest to the pl,ace of (ii) he was under 14 years of age (Article 59, Penal
a,rest 1mmed1,a,tely and 1,n any ca,se not J.ater than 48 hours from Code);
'.he time of arrest exclusi·ve of the neces,s ary travel tiime.
(d) .the offence has bee,n extinguished by:
() . The period of 48 hour.s prescribed in this p.arngrnph i,s the
maximum. It does .not enti~le a Police Officer to keep in custody (,i) death (Article 143, Penal Code);
a pe,son arrested Wl'thout warna·n1t a minute longer than is neces- (i.i) ,amnesty (Article 144, Penal Code);
.,:iry for the purposes of inve.stig,atfon .
(iiii) withd1r,awal of complain.t (Article 145, Penal Co-
(3) Paragraph 2: This i,s to ensure that a Court has some de);
1,:iowledge of th.e ch.arg~s ag,ainst the arrested person, however (iv) compounding (Article 146, Penal Code);
1:1complete that information may be, so tha,t arbitr,ary .arrests and
'etrntions are avoi.ded .
(e) proceedingis canno,t be insHluted beoause of:
/4) In Supreme Court Criminal Appeal No. 7 of 1968, Ali Mo-
hamed Deria (Nafyar) v. State, the appellant was arrested on (i) autref ois convict or au/refois acquit
lhe basis of a First Informati'On Report. Thiis Rerport listed four (Artic,le 13 (3) ) ; ·
offences a!legedly committed by the appellant and some o,thers .
One of the offences liosted was smuggling and the other under (ii) lac·k of authoris.at,ion to prosecute
' '
Article 212 of the Penal Code. Only in respect of the offence of (Arlide 13 (5) ) ;
c.muggling the sa,id Report -stated th,at some police officers had
i.J :-ough:t i-n the app~lla'llt a:nd o1her «on a charge of being i,n (iii) exp.i,ry oJ time-limit (Article 73);
µussession of certain smugg'.·ed g,oods ».
(iv) Jac,k of complaint (Article 81, Pen,al Code);
The quesbion before the Supreme Court was whether thii•s
Report was a sufficient compliance with the provi.sions of this (B) orde.r the immedi.a,te relea·se of the a1rresled person if · the
paragraph. It was held th,at the report did not give enough de- alle,ged offence 'is o.ne for which a warr.ant of arrrest cannot
tails lo show «a;ny prlma fade evi·dence that an oHence had oee.n be issued under Articles 42 and 43 or the arrest w.as not
committed and that it ha,d been committed by the appellant»; and carried out in confo.rmity with Ar.t,i'Cles 35, 36, 38 o·r 50;
since Article 3'.2 requires that provisions rel,ating to arrest shall
be strictly observed, the arrest of the appell.ant was illegal. The (C} in other cases, the Judge sh;,11 confirm the arrest.
appellan.t w.as ordered to be released immediately.

(5) Paragraph 3: The Judgie before whom a person ar.rested

wHhout w,a,nrant i·s brought s•hall ex.amine the summary report
submitted in accordance with paragraph 2, and :

(.'\) order t.hat no prooeedin.gs shall be i1nstitu.~,ed against the

arrestPd person when it is evident tha,t : ·
 - 54 - 55 --
S eotio n II I Or.,2 of the grounds of appeal was thait t,he warrant of arr·est
ARREST WITH WARRANT was issued. on the strength of mere ,police a:llega.tio,n t',at
the app,ella,nt had committed an offence under Ar.ticle 204 of the
Penal Code, and that _Article 40 o·f the Crim'i-nal Procedure Code
A,r,t icle 40 was viola-led in that trhe wanrant was issued in the absence of
ar:,y prima facie evideince · that the a,ccuse;d ha.d commit:ed the
Conditions required for the issue of a warrant of arrest and of,ence.
authorities empowered to issue such warrant
The Court, after di.scussing the facts of the case and the
r,el.evant l,aw, he,Jd that the- warrant of arrest was issued in the
l. A w,arrant of ,ar,re,s,t may be -issued when there are g-rounds a'bsence o.f the conditions lai,d down irn this Article and without
to believe that : · any reason bei,ng given for it,s issuance and as such it was null
{a) an offen<:e has been commHted; and void . under Article 84 of the Criminal Procedure Code.

(b) the oJfence was comrnilited by the accused person.

Article 41
2. A warranrt of arrest may on,ly be issued by : Form of warrant of arrest .

(a) the competent Judge, up to the t.ime of the commence- I. Every warr.ant of ar,rest shall be issued in duplil' B(e, 2nd
ment of th e !rial i,n a Court of first instance; shall con!,ai•n :
(b) the President of lhe co mpetent Court, ,at any other stag11
of t.he proceedings . (a) the name of the Court issuing the warr ant ;
(b) the elate on which t,hc warrant is i.ssued:
N O T ES (c) the per,sonal details of the accused, or, if t·hese are nol
known, any other indication by which he can be identi ·
(I) Accordsi·rng to pa,ragr,aph I of thi·s Ar,Hcle, befo,re a warnant fied with reas'On.abie certainty;
of arrest may be i,ssued against an accused person, there should
be ground,s t'O believe not only that an off.ence has been commLt- (,d) t,he essenit:i:al elements constituting the offence fo;· which
ted but also thia,t it ha,s been commiiLted by the accused person. the arres,t ha,s been ordered;
A wanant of arrest shioui,d not be issued !i.g·htly. The competent
Judg,e in deciding whether to isiSue a warr.ant of arrest or not (,e) the sign.afore of !-he · Judge and the seal of the Cour t
must exercise a judicial discretion hav.ing regard to .the materi·a·l which issued the warrant.
duly pl,aced before him. -:
(2) This qtiest•ion came up .before the Supreme Court in Criminal 2. No person arrnsted under a warr·ant shall be rele.a,sed solel y
Appeal No. 153 of 1967, Mohamed Jama Urdoh v. State . . The on the grounds that the warrant is defective in form.
facts of the case were that the appellant was anrested under a
warr,ant of arres.t is.sued by the Re,g.io.nal Court, Benadir, on
8.11.1967 on the ground that he had commi,tted an offence under NOT ES
Article 204 of the Penal Code. The a.rrest was confirmed on
12.11.1967 a.nd a·ppell,ant\s a,pplica.tion for bail w,as rejected. An
appeal was lodged to the Court of Appeal, Mog,adiscio , both (I) Parag.raph I enumerates the requisites of a v,alid war.rant of
against lhe order rejecting (he b.nll nnd the order confirming the :irrcst. As it affect.s the pcrson,ul liberty, II Is csscnllol lhnl It
l'OmpHes with. all the formalllles prescr.ibed by l,aw. The most
arrest. Both the appeals were dismi,ssed and the a,ppeUant oame imp·orfan.t element of a warr.a·nt of arrests set out in this para-
on second appeal to the Supreme C9urt. graph is con.t:a-ined in letter (c) as to the identity of the person
 -·· 56 - · - G7 -
to be ~rr.este~ . A w.a,rrant should contain a distinct and unequi, Article 43
~ooal 1nt1ma-twn to the perso.n that he is t,he individ,ual meant to
1,\'. arrcs~·ed. A warran,l requi,ring the ar,reS'. of «,Ali» for the Cases In which the Issue of a warrant of arrest Is discretionary
uilenre of theft would be clea·rly bad in law. Such a wa.rrant
would justHy the PoHce Officer executing Lt to airrest anyone of A wa,r,ran,t of ar,re.st m.ay be issued:
that name w.hoever he may be and wherever he may ,be found,
\he number of person:s J.iable to be a,rrested under i.t being Hmi- (a) for an offence for w.Jii.ch the minimum ·pu,nishment is
ted only by t,he n:umber of persons bearing tha.t n,ame. imprisonmen,t for not less th,an 6 months;
( 2) Al,s.o, the is,suing of a. genenal warr:ant of arrest which means
,: warrant to .a,rres.t all p·erscms committing a pa.rticular offence (b') for any other offence for which the i·s-&ue of a warr,an!
or cJ.ass of offen~s i,s illegal. of arrest is au,thor·ized by l,aw;
(3) Althou.gh a wanr.a.n,t of arrest must con,tain all the det.ail,s (::) against a p·erso111 who ha·s reoeived a summons t:o appe:ir
:.et out in paragr,a•ph I, any defect in form shall not entitle the bel'ore a Court : ·
per.son arrested to b~ r,elea,se.d solely on that ground accor.ding
(o p.a.ragraph 2. Here, one m.ay consider Article 84, accor,dJng (i) H t,here a.re g•rounds to b.eJ.ieve th.a.t such per,son
to pa.ragraph 2 of which, a w,arrant must be dated and signed • hias lef,t or is a.bout to leave the territory of ·Vhe
by the issuing auth.ority sta.t ing \.he reasons therefor; If these S.tate, or intends not to appear before the Couflt; or
requirements are not complied with, the ad sh.all be null and
void. There would appear .to be a conflict between \:hi,s provision (ii) i,f such per.son ha,s fail,ed, wi:thout justifiable reason,
of· Article 84 and par,ag11a,ph 2 of thi,s Article. If the act of is.suing to a,ppear before the Court at the bi,me and place
a wairr,an:t of arres,t withou,t date i,s null and vo,id in accordance S•pecif,ied in the summons or in any subsequent
wi!·h parag·r.aph 2 of Artie!~ 84, it would follow that the arrest 0rder.
of a p,erson under such a warrant shall be il,leg,al ab init1io; but
pa.ragr.aph 2 o! th,iis Article says tha1t the a.rr€1sted person shall
110\ be released on thi•s ground .
NOTES

Article 42 A-r,tiicle 42 deal,s, wi1t.h ca,ses in which the i,ssue of a wa,rr.an!

Cases in which the issue of .a warrant of arrest is m,andatory of arrest is mandatory and this Article, with cases in which the
issue of wanrant of arrest is discretionary. But there are ·cas.es
which do not come wi1thin the s,cope of ei1ther of these Articles,
l. A warrant of arrest shall be issued aigai,nst a persllln e.g., the offence of a.ss,auH contma ArUcl;e 439 of the Penal Code
=ir.cw;ed of : whi~h i•s puni,sha,bl,e w.Uh impri,so,nment up.to six months. In suoh
cases, only a summons to appear hefore a Court may be issued
(a) any of the offonces referred to in Article 35; against an accusied person under Article 48.
(b) an offence Lo:r wthkh the maximum punishment is impri-
.s,onmen,t for not less than IO years, or a heavier penalty; Article 44
(c) .any other offence for which .a ·war.flan! of arres.t i.s man - Execution of warrant of arrest
datory by law.
I. Every Police OHicer shall execuite a wa,rr,a·nt of arrest .as soon
:2. A warrant of a,rrest shall be issued also:
as pos,sible.
(il in ac.x:orda,n,ce with the. provis.ions of p,arag.raph 4 of
J
Article 47; 2. If the ac.cu-sed i·s :
(a) a pregnant woman or woman nursing her own chil,d;
(b) in accordance with the provisions of p.arag,raph of
Article 63. (b) a pe, son in a very seri-ous sitate of ill-heal,th,
 - 58 - - 59 -

the Cou.rt which i,ssued the warr.ant may order a stay of execu- NOTES
tion of the w.ar,rant until such time as the cause of the stay of
execution no lo·nger exists. ·under Article 39, a person arrested without warrant shall
oe taken to the competent Court immediately. Under t'lis A~-
3. Unless there i,s an ur,g,en-t n.ecessity, a wa,rrant of ar,rest shall ticle, a person shall, unless released on bail, be taken before a
not be ~xeouted in a priv,ate dwelling . house between the hou,rs juclidal authority «without unnecessary delay». Unlike in Arti-
of 6 p.m. to 7 a.m. cle 39, no maxi1J1tim ·time-limit is prescribed in this Article but
law is very jealous of the liberty of the people. and shall n~t
4. A Police Officer who executes a warrant o·f arrest shall : allow detention unless it is absolutely necessary. In no case 1s
(a) inform !,he per,son to be arr,ested of the sub.s.,t,anc.e of the a Police Officer justified in detaining · a person a minute .mor.e
warr.ant; · than is absolutely necessary upon some reasonable ground Justi-
fied by all the circumstances of the case.
(b) serve the wa-rrant on the per-son to be arrested as soon
as pos.,sible.
Section IV
CUSTODY BEFORE TRIAL
NOTES

Paragraph 3: Ex,ce,pt in the cas,e of urgent necessi,ty, a war- . Article 46

rant.. of arrest shall not be executed in a pri·va,te dwelling house Remand of acc!Jsed person to custody
between 6 p.m . and 7 a.m. This is based on the p.r.incip.le of
inviolabi.Ji:ty of domicile. What is «urgent necessiity» is a que-
stion of fact depen·ding on the cir,cumst.ances of each case and An order remanding a_n arrested pers.on to custody, issued
the ex.pre-s,sion has already been commented upon iri Notes under by a competent Judge or by the competent Court, shall provide
Article 24 . that the accused :

M,tide 45 ( a) shall be detained in prlson or elsewhere;

Person arrested on a warrant of arrest to be taken (b) shall be brought before a Court in accordance with the
before a .I udge conditions of ·the order.

I. Unl,ess he. i,s relea,sed -on bail in aooordance with the prov.i-
sion-s of pa.r.ag,r,a,ph 2 of Ar.tide 62, a penson arr.ested on a war· NOTES
r.ant of a,r.rest shall, wi,thout unntcess,ary delay, be taken before :
(a) a oompetent Judge; or (1) We ·have seen th.at paragraph 1 of Article _39 reguires that
a person arrested withc,ut warrant shall be laken:1mmed1a.lely, and
(b) a Judge of the Court near,e.s,t to t.he place of the arrest, ih any · case · not later than 48 hours from the time of his arr~st,
if t·he competent Judge is situa.ted more than SO kirlome- before a judicial authority. We have also seen that according
tr,es from such pl,ace. to paragraph I of Ar.t_icle 45, . a per.s_?~ ~rrested o~ a ~arrant ol
arrest shall be produced before a· JUd1c1al _authority w1~hou_t u~-
~- Insofar as ap,plicable, the 1provisions of sub-paragr,a:ph (,:) necessary delay. . But we know that invariably t.he police. rnve,-
of par,ag,rnph 3 and of pa.rngrnph.s 5, 6 and 7 of Ar.tic1e 39 sha.Jl tigation takes much . longer time to complete., particularly in re-
sped of .se'rious offences 1n such cases, 1t . becomes necessa rx
a,p.ply, ~rovided tha,t, if b.a.il is granted by a Court other tha,n that the · accused person shall be further deta1~ed. The law ev1-
lhe competent Cour.t, such decision may be modified or revoked ·dently views with dlsf avour continued deten lion of an arrested
. by t:hc competent Court. person In the Police custody and this Article as read with para·
 - 60 ~ 61 ...,..

graph 3 (c) of Ar.t!cie 39 requires the judicial authority · to make 4. .,.Wher'I .re)ea:slng an 'accused person in accordance with para-
an. order remanding the arrested person to fudhcr custody .in gr,a,ph a of this· A:rticl'e, the Judge may impose on the accused
pnso.n or elsewhere to be brought before a Court. later. · ~ny conditions .which 'he deems appropriat e to ensure the .appear-
(2) As the Cour~ will ~ave _before it the summa.ry report sub- .• ·,, . ance of the accused before the competent 'court. ·
m!l!ed by the Police Officer m accordance . with paragraph 2 0 J If:
Art'.cle 39, the Court is in a position to scrutinise the act Qf the
Police and to see wlhether the act was legal :•an<l prciper. and · (:a) the accused breaks any conditions imposed .upon him; or
fu~ther .whether the formalities required by law had' b.e.en corn, " , : .f;
plied with. (b) there are grounds to believe that the accused has lef.t
or ls about to leave the territory of the State,
Ar.ti'cl e 47' • a war:ant for his ~.rres.t shall be issued and therea'fter the ttm'e-
Duration of custody before trial limit pres~ribed for custody shall begin to run again.

l. Unless the Court has ordered the trial of the · accused i::i. 5. The rules of this Article do not apply t-0 the cases falllng
nrrnrdance with sub-paragraph (b) (i) of Article 75, the accused within the jurisdJction of the National Security Court These
shall be released when the ·period of custody has exceeded : case~ shall be brought to trial as soon ,as possible but no parti:
lJ cular time-limit sh.all be mandatory.
(a) 90 days,. if the off~nce 'falls within the jurisdiction .of
.the Assize Section of the Regional Court, and the pun- (As amended by Article 5 of Law No. 8 of 26.1 ..1970) .
ishment laid down by Jaw i,s death or life imprisorupent;' ·
(b) 60 days for other offences which fall within the ju.risdk- NOTES
tion of the Assize Section of the Regional Court;
(c) 45 days when the offence f.a!J.s within the jurisdicti.on of · (J.) We havie already seen that law views with · disfavour the
the General Section of the ~egiona! Court;· . c~mtinu,ed detention of an arrested person before trial. T'1is Article
purports to emphasise this by laying down the maximum
(d) 15 days when the o_ffence falls within the jurfsdktion of 1 · ' periods of custody fpr ·the various types of offences after which th e
the Criminal Section of the District Court; arrested person shall be rel e,ased uriless t-he period is extended
by the Court of Appeal on the request of the Attorn ey General or
provided that the competent trial Court. may, on application by his Deputies or . unless the Court has ordered the tri.al of the
the Office of the Attorney General, .all.ow the period of custody ac01:1sed in accor:dance with Article 75. Any extension of the
to be extended for a further period not exceeding the maximum 1per1od of custody or the order of trial shall be made within t11e
pr~sc'!'UJed period.. 1f ·this is not done . in . time the Court shall'
period of custody specified ab.ove for each type of . offence. · have no alternative but to release the accused. These are useful
(As amended by Article 5 of Law No. 8'4 of 12.1'2;1972). prov.islons in that they ensure that there ls no ·slackness. In the
conduct of investigation· of cases and that the accused persons
2. The period of custody shall, for all p,u.rposes, commence on are br.ought to trLal wJ,th as !i.ttle delay as possible.
the day on which the accused was .arrested'.
(2) It will be noted that the release of the 'a:~rested person
3. Until lhe date of the trial has b.een fixed, an accused 1n .after the prescribed .period of custody does not necessarily mean
custody shall be brought before the J.udge every seven days. r~ an absolute release. Under paragraph 4, the Judge when releas-
any case when this provision has. been vi-0lated the Judge shall, ing may impose on the accused any .conditions to ensure his
appearance before the competent Court. The conditions so · im-
i,n accordance with Ar,ticle 32, tak,e action against the per~n piJsed must be solely designed to secure the attendance .and
responsible. must not in .any ·case be such as to preclude · the release of the
 .. .. ...... ~ "\:•' , ,.,·1iKH ugal Office
- 62 -
A.VV: &:f Cabdurax.•iaan Sh. Xasan

,accused. · Since it is illegal to detain the· accused a'rter the statu- (c) personal details of the accused, or any other indications
tory period of custody has elapsed, any condition the object or by which he can be identified with rea_sonable certainty;
result of which is the continuance of the detention of the accused
is also illegal.
(.d) the essential fads constituting the offence for which the
Chapler II summons to appear has been issued;
SUMMONS TO APPEAR BEFORE A COURT
(e) the name of Court before which the accused must
Article 48 appear together with the time and place of appearance;
Condit!ons for the Issuance of . a summons and
authorities empowered to issue i.t (f) the signature <if the autho,rity issuing the summons and
the seal of the Court.
1. A summons to appear before a Court shall be issued when
there are grounds to believe that:
(a) a.n offence has been committed; Article 50
(b) the accused committed the offence. Obligation to furnish information regarding identification
2. A summons to appear before the Court may only be issued
by a competent Judge, in accordance with sub-paragraph (b) (ii) 1. A per son against whom a summons to appear has been issued
of Article 75. Such summons shall consist of an order, directed · must provide full personal details of himself, together with his
to an accused who is not in custody, to appear before the com- address, if so required by a Police Officer.
petent Court, at the time and in the place stated, to answer: a
~pecific charge. 2. A Police Officer may arrest without warrant any person who,
having been lawfully requested to provide his : personal details
r.eferred to in paragraph I :
NOTES

Whereas Article 40 deals wilh l1ie .issue of a warrant of (a) refuses to provide full persona-! details of himself, to-
arrest. this Article deals with the issue of summons. The object get!i.er with his address;
of both these is to procure the attendance of the accused before
the Court to answer the charge against him.
(b) provides details which the Police Officer requesting them
Article 49 has grounds to believe to be false.
Form of summons
3. A person arrested in accordance with the preceding para-
Every summons .to appear before a Court shall be Issued in graph shall be released from custody, by the person who arrested
duplicate and shall contain : him or by any other competent authority, a-s soon as the correct
personal details and address a,re known. If for any reason such
(a) ·the name of the authority issuing it; person is not released, then such person shall be brought before
(b) the date on which the summons is issued; a Judge in accordanc-e with the provisions of Article 39.

,..
 64 - 65 -
graphs 2 and 3 of this Article, the summons shall be served by
Article 51
. ,. ~ffixing one of the dupliqtes to some conspi.cuous part cif the
Service of summons .to ·a:ppear house or place in which the accused ordinarily resides.
5. ·H the accu~n itS in the active servi.ce of the Government or
1. A summons to appear shal'l be ·served by: other public body, the summons may be sent for s·ervice of the
head of the office in which the accus·ed is empt·oyed. The head
(a) a Police Officer; of the o.ffice shall cause. the summons to be served in the manner
(b) a Court Officer; provided in paragraph 2 of this Arti.cle, a·nd s,hall ·cause, one of
the duplicates to be returned to the issuing authority.
(c) any other person _as the· Court may direct. 61 When th_e accused is outside the territorial juri'sdiction pf the
o~,petent Court, the summons shall b.e sent to the Court withiin
2. Service of the summons shall b.e executed by delivering one of whose territorial jurisdiction the person to be summoned Is to
the duplicates of the summons to the accused who shall, if so be found for ser.vice· in accordance with thi,s Article. ·
required by the serving officer, sign a receipt for 1t on the back ,,
of the other duplicate. If the accused refuses to accept the
summons or to sign a receipt for it, the officer serving the sum- Chapfer Ill
mons shall record the fact on the summons, which shall then be
deemed to have been served, MIS(;ELLAHEOUS MEASURES

3. If, despi.te the exercise of due diligence, the accused cannot , ·

be found, the summons sha'Il be served by leaying one of the Section I
duplicates for delivery to the accused with : SEARCH AND SEIZURE

(a) a member of his family, Article 52

(b) an employee who lives in hi~ house; .or Search and seizure
(c) his employer.
Search and seizure; whether with or without a warrant, shall
Whoever accepts the summons shall, at !he .r.equest of the only he undertaken in the cases and in the manner prescribed by
officer serving it, sign his name on the .back of the other duplicate. law.
Under no circumstances can a summons be delivered In accord-
ance with the p.rovisions of this p.a.ra.graph to a person who : Article 53
Issue of warrant of search and seizure
(i) .is less than 14 years ,aige;
(ii) is clearly of unsound mind; A search. warrant, or .a warrant of. seizure, may only be
. issued by :
(iii) is clearly in a state of .dr.unkenness;
{a) a rompetent Judge, up· to· the time of' commencement of
(iv) is an injured party in the case. ,p.rocee.dings by a Court of first instance;
4. If, despite the exercise of due diligence, ,it is not possib,le to ·. (b) the President of the compet€nt Court, at a~y otJ1er stage
serve the summons in accordance with the . pr.ovisilDl!lS of paru- of the ·proceedings.

:,•.
 - 66 - - 67

Article 54 · 3. Any object, which is pertitn,erut .to ain o.ffence aind is found
during a search, maybe seized on the strength of a search w.arrant,
Form of warrant of search and seizure when the per,s,on who. Ji.as co,nfrol over or possesis,ion of ..the object
E_very warrant of · ~ea.rch or seizure shall be issued in dupli- to be seized refuses to deJ.i.ver H. The wanr.ant of seizure shall
cate and shall conta.ln :
be deemed to indude the power to search, to- t•he ex.tent necessary
(a) the name of the· issuing authority; to fulf,il the executi10n of the wa.rran:t of seiz,ure.
(b) the date on which the warrant is issued;
(c) reasons for the. issue of the warrant; NOTES
(d) personal details of the person to be searched or want-
ed or, if these are . not known, any . nick-names or other ( 1) I.t mu.st be remembered t,ha;t j,t is a grave step to is•sue a
sea1rch warr.ant di,reciing thia.t a· person's house should be invad-
indications by' which he can be i.dentified; ed and sea,rched . .·The J'aw vi·ews wi.th disfavour any unneces-
(e) details and whereabouts of the place or object to be s·a.ry invasion on the priv,acy of the individual. It i·s therefore of
searched; paramou.nt im.porta,nce to conf.ine the is.sue of search warr.ants to
the sfr.ict requinemen,ts of law. Bu.t i,t i,s equa!.Jy important in the
(f) a description of the object to be seized and of any person lar.ger in:ver,ests of ,t,he a.dministrati'on of justice that Police Offi-
with control over possession of such object; N:rs engaged in ithe discharge of their duties · oonnected with in- ·
vcstigation relati111g to offenc,es should he a.fforded fair al!ld rea-
(g) the signature of the authority .issuing the warrant and sc,nable fa.cilities ·for searches in the cour,s.e. of sudh investigation
,the seal of the Court. if applied for on reaso.niable gnotin,ds and if calcuLated to fLLrther
such investigation.
Article 55 (2) I,t will be noted that throughout panagmph 1 of this Ar.tide,
emµhasi:S i,s Ja,id on specified pers,on, place o.r object. Thi,s means
Cases In which warrants to search or seize may be Issued that law contemplia,tes the search for some specified thin,g wh.ich
may be deemed eissen1i,a,l to the OO!'l,dud of a,n inves.tigatfon, e.g.,
1. A search warrant may be issued: a blood-stained knife,· a forged document, a piece of stolen pro-
perty, etc., but it can scar.cely have been the intention of law to
(a) when there are grounds to ·believe that: empower Police Of.fkers to make haras,sing domicif.ary visits to
enqui,re minutely i·n'to the private concerns o.f indivi,dual.s, and
(i) an object pertinent to an offence may be found on to seize any· ,part of their papers under t>he bare chance that
some specified person, or on or In some specified something mi,ght therein be .found te,n,ding to the conv-iction of an
place or object; accused persion .
(ii) on search of some specified place, a per.son to be (3) p ·a ragraph 2 deals witih a w,arrnnt of seizure. Here, ag,ain,
arrested may be found therein; f.here m'ust be grounds to believe that a cer.tain object pertinent
t.o an of[en.oe may be found and seized .
(iii) on search of some specffied place, .a person unlaw-
fully detained may be found therein;
(b) .when it is necessary to search any · specified . person, Arilicle 56
place, or thing, for the purpose of finding any material Execution of warrants nf search and seizure
evidence which may have a bearing on the offence.
2. A warrant of seizure may be issued whe·n there are ground:s I. A warnant of search or of seizure may not be executed in a
to . believe that a certain object pertinent to ah · offence may be priva~e dwel),ing house bet,ween t>he ho1:1r.s of 6 p.m. and 7 a.m.
found and seized. unless :
 - 68 - . - 69 -

(a) there i:s somie urgent neces.sHy for Hs exec-ution; or ac{Jording to oust.om, appear i·n publk, s,u,ch w,oman S1hall be given
every reasonable opp1ontiuniHy to ret.ire to a suiitable place or to
(b) the i1ss1uing authority h.as authorized Hs execu,tion a,t
,any hour . cover herself adequately.

2. One of the d,u.p\.ioa1te.s of the warnant. shall b.e given to ~he 5. No pa:per,s or documents whioh are in Lhe custody of Counsel
person to be sea.rched or to the person in cha,rge of the pl,ace or or t.echnkal consuJ.t,arnti.s i,n connection wHh the performa,nce of
object to be searched or seized. their duhies shall be ,seized, unless siuch pa.pers or doc,umerits are
the subject, .instrument or fruit of the off,ence.

NOTES
As iin the case of execufron of warrant of arreSlt under Article
44, a warrant of sear-eh shall (although the word «may» 1s (I) Par,ag,raph 2 of t1hi,s Ar.fi.cle requires th,a,l a pe-rson subject
u,ser'.) not be exemted between 6 p.m. a,n.d 7. a.m. unless t1here is to search or a per.son in oharge of a place subject' to search or of
some urgent necessi1ty or it is so aulhorisoed in the warrant. an objeot subject to sea rch or seizure shall afford all reasonable
1

What is «urgent necessity» depend,s on the circums.tances of each facilHies for the execution of such search or seizure. In case of
::ase and the expres·sion has alrea.dy been commented upon in any obstruction , use of reasonable force to carry out the se,arch
~·Jotes (6) to (8) under Article 24. or seizure is perrni,rted under panagraph 1.
(2) Piar.agr.a·ph 2 enj.oinis upon the authori,ty carryi,ng out the
Article 57 search of a person to oh.serve deoenicy. H fiuirtiher provides that
a woman shall only be searched by a woman. · Also, as in the
Other rules to be observed in search and seiz.ure aase of entry into private pla.ces for the purpo.se of ar.res,t under
p.aragr.a.ph 3 of Article 30, a woman who according to custom
·I. The perSlQn maki•ng the sea-rch or seizure may : does not a,ppea,r in public, should be afforded every . reasonable
opJ)o,r.tuni1ty to reHre to .a ,suiiitabfe place or cov.er herself ,adequa-
(a) use rea,siona.ble fom~ to oa.rry out the search or seizure tely, i,n .accordance with parag:r.a,ph 4.
if resistance or ref.us al to a.Jlow the search or seizure i,s
oHered; (3) Par.agraph 5 protects from seizur,e d.o.cume.nt.s which are in
the c,us.t.ody of Counisel or techn:ica.J consul1rants in the disch.arge
(b) ,se,arc,h a.ny person present in the pl·a.ce be,in,g searched, of their du.ties unless, of cour,se, such dooumernts are the sub-
i•f there are g,roundis to believe tha1t such person is con- ject of the offence. For example, the recor,d of a statement
ceaH.ng a,n object pertinent to the off.ence. tn.ade by ,an accused person to his a,dvocate shaJ.J not be ,seized.
However, H a public officer oh.a,rged w,i,th an offence u,nder Arti.
2. Any per.son subject to search, or any person i•n charge of a cle 366 .of the Pen,al Code leaves wi1th his defence Cou,nsel the
pla,ce subject to search or of a.n object subject to seairch or sei- falsified document, which is the subjeot of the of.fence, such a
zure, shat.1 affor,d all reasonable · f1aoi!Hies for the exeou.tion of doc,umen:t is Hable to be •seized.
such s.earch or s0i;:ure.
Ar,t.icle 58
3. In ea rry,ing ou,t t•he sea·rch of a penson :
(a) decency sth1all be fully oibiserved; and · Search and seizure without warrant -:- confirmation
(b) the search of a woman shall only be undertaken by a
by the Judge
worn.an.
4, If a woman is i,n oharge of the . place to be searched, or of l. A Police Officer in charge of inv,es.Hga.t.ioniS . in accordance
lhe object to be searched or seized, and such woman does no,t, with Article 24 may underta1k•e a search or seizure, wi~hout war·
 - 70 - . - 71 -
rain,i; in :oase of urg.ent necessd,ty, w,hen there ,are g,round.s to be- Sedio.n II
lime .tha,t :duri,ng t,he tiime requ·ired to -0bt.ain such warrant:
(a) maforfal evidence may be destroyed or aJ.tmid; RELEASE ON BAIL
(b) the wan,t.ed person may a.b.scond. Arti.cle 59
2. A •Poli1::e Of fie.er who ha.s underfak.en ,a se.arch or seizure Ba i I
wtthout war,rant sh,all f.o,rthwith so inform the competent Jud.ge
.ar a Judge of .the Court nearest fo where the s,earch or seizure. I. Release on bail shall mean :
took place, and aliS'O. ,the Off.ice of the Attorney General, ;tating: (a) refr.a-ining from arreSiting- an accused person agai,nst
(,a) the rea,son.s neces-sii,ta Nnig; ,a,nd whom a Wta,r,ra,nt of arrest ha,s been i.ssued, in the cases
referred to i,n p,aragraph 2 (.a) of Artide 60;
(.b) t•he r.esul1 of,
suC'h searCih or seizure. (b) relea,sing a per.son who has been lawfully arrested.
2. Relea.se on ba-i! may be gra.nted :
3.. H such ·search or seizure without warrant is not confirmed (a) subject to the execution of .a bond :
,by a Judge within 8 dayiS, such ,search and seizure shail he deem-
ed .to have been un,a,ut.horized and shall be null .and voi,d: (i) by the accused ,person; or
(ii) by other perso~s; or
4, . .Insofar .as appl-ica,ble, the pro.visions of Article 32 an,d of
par.a,gravh 7 of Article 39 shall be observed in regard to searchs (i:ii) by bath the accused per,son a:nd by other persons
or seizures undertaken without a w.arrant. jointly, f.or the s,pecific punpos.e of ensuring t:he
ap.~,e arance of the accu!sed in the competent Co.urt ;
(b) sub jeot lo any othe,r c,ondi-ti'Ons which the Cou r! ma v
NOTES deem m. .
:3. Excep:t as o-therwiis,e pr.ovi,ded in thi.s Code, bail shall not be
(I) Articles 53 to 57 deal wHh search aind :Seizure wi,th wan.ant. , granted in thpse ca,ses where the is.sue of a warr.ant of arrest is
Tb.is Article ·authori,ses sear.eh and ·seizure. without a wa rrant i,n · ma'ndatory •nor in cases •falling within the jurisdidion of the
the ·caS:e of urgent necessiaty when i.t i·s not p'Os·sible to obtain :\/atfon.al Se,curi-ty Cour,t cxce.pt minor ca,ses wHh the approval
S>tich warrant because in the meantime:
of the N•a;tional Siocuiri,ty CouT:t Prosecutor and of the N.ational
{.~) materi;al evi.dence may be destroyed or altered; or SE'curiioty Cour,t Judge.
(b) the wanted person may abscond. (As amended by Article 6 of Law No . 8 of 26.1 .1970) .

(2) Any suoh search or seizure wH:hout warr,an.t s·ha.Jl have to

be reported to a ju,dkial authority for confirmation and if not NOTES
confirmed wHhin 8 days, i.t shall be deemed to be null an,d void.
(3) It will be oh.served that there does not appear .to be any I I) Paragr.a.ph of thi,s Ar,t.icle ,exp la.ins w,h,a,t is meant by «re-
provision fo.r the presence of wi,t.nes.ses at the -time of search a,s leas_e on bail ». r.t mean,s refr.a.i,ni,ng f.rom arresting a person
is ·generally the case in these matters . Such a provLsion is use- agamst whom a warra.n·t of a,rrest has been i•ssued or releasing
a person ·who ha,s been lawfully .arrested. B,ut what is m€>an.t by
ful t,a prevent any ,abuse o.f the power of .S·earch and seizure a,nd «::iail»?. There iiS- no diefinii,bi,on of this in the Gode. Accordi,ng t•o
afao as a sa.f.egua,rd agai.nst .any allegations .aga.i nst the autho,rHy .Sla,ck's Law ·Dicticnary (4th Ed. p. 177), i;t means <~to procure
carrying out search and seizur,e wiJh or w.i;thout warr,ant. the relea,s,e of a person f.rom legal mrntody by undert·aking that
 -- 72 - -- 7'J -

he shall a,ppear at ,the t,ime a,nd° place desi,g1nated and s,ubmH him- brought, or by a compe.te111t Judge up to time · of .c.om-
self to the ju.ri·sdicti.on and judigmen,t of t,he Cour.t», mencerhent of pr,oceecJi.ngs in a Cour,t of ·f,lrst Instance;
(2) Par.ag.raph 2 sets out the cond,i,td,ons under which releaLSe (b) by !,he Pr,es!dent of a oompetent Coud,. at _ any othe;r
on bail may be granted . The required bond may be execut,ed by stage of the proceedin.g.s.
the accused him;s,elf or by other peroons a,s sureties or by b-0th
the accus,ed and other persons. 2, l·n those ca.ses for which ba•il is allow,e.d, b.ail may be
granted:
(3) P.aragrap.h 3 sets out !-he· oases in whi,ch b,a,il sha,IJ not be
granted . These are the cases in whioh the i,ssue of a wairrant of (·a) by virt,ue o-f a,n order allowing bail contained iii the
ar,rest i.s manda·tory under Antkle 42, The amendment to this wa-rrant ·of a,rrest; or
para:gr,a.ph by Ar.tide 6 of Law No. 8 of 26 J,anuary, 1970, exdudes
release on bail in cases falJ.i.ng wiHrin t,he juroisdioti,on of the (b) ,at any l,ater stage in the pmceeding.s, in accor.dance
Na.Hon.a I Securi.ty Cour,t except f:or minor cases.
with the provisions of parngr-a.ph 2 of ArUcle 59: ;
(4) T.hi,s Artkle was ,discussed by the. Supreme Court in Crimi-
nal Appeal No. I of 1965 - State v. Ibrahim Salah and Abdul
Karim Gerad Mohamood ( Somali Law Reports, Hargelsa and Bu-
rao Regions, 1964-65, p. 247). The respondents were cha,rged NOTES
wi-th the offence of pecul,at,i.on oontna A1r,tiicle 241 o-f the Pe,n,al
Code (an offence for which iS,sue of war:r.ant of arrest i.s ma,nda-
tory). They ap,plied to the Regional Court, Hargeisa, for ?ail . ·. G~ner.al!Y s.peakjng and subject, of course, to a,ny s.tatutory
but this wa,s refus.ed. On appeal, the Court of Ap-pea\, Harge1sa. l1m1tations, 1,n granting or refusing bail, Courts ·Should take into
consi1deration the following poi,nts :-
gr,anted them bail. The Sta,te ap,pealed against this grant of bail
to the Supreme Court. It w.as held tha.t where the i,ssue of war- (a) the nature of t•he a,ccus.a.U,on;
r.a.nl of .arre.s-l is mandaitory as in lhi,s ca.se, the Court has no (b) the nature of the evidence in support of the accusation;
discretion to arant bail It was also held .t hat the inifro.duotory
words of pa r.ag,rn ph 3, viz ., «Excep.t a·s. otherwise provided in this (c) the severi,ty of . the puni,shment which convict.ion will '
Code» are surpk.:,age having no i:-neanmg a•nd as such should be entail; and
ignored. The Cc11rt also expound_ed the general principle under- (d) whether the a,ccused, if relea,sed on bail, is likely:
lying release on b;i.j] in the follow1,ng wor,ds :-
(i) to tamper wH-h the pro.secuti.on evidence; . or
«The pri,nciple underlying , r,eleais,e ~n ~,ail is th.at . (ii) to get up false evidence in support of the defence.
n a c,c u,s.e d pe r.s.on is pre,s umed 1,n 1aw to be In n~cen.t h,]l
::i
his guiLt i,s proved an.d that, a,s a presumably mnoc~nt
person, he is entitled to fr:e.edon: and every o~,portunity Article 61
to look after hi1s ca,se, prov,1,ded his attendance 1s secured
by proper security. The general polky of law is to
allow ,r.ather than refuse bail, .and bail ought not to be Type and amount of the bond
wit·hh~ld as a pun,i shment».
I. A bond shall oonsi.st of an amount of money which t-he
guaranfor, in acco,r,dance wi.th the directi,ans of the Cour.t grant-
Ar.tide 60 ing the bail, shall :
Grant of bail (a) dep,osi.t wii.h the Cour.t; or

J. Except as otherwise [Jrovided in this Code, bail may only be (b) guarantee t,o pay iJ any of the condi.ti.ons of the bail
a,r-e broken .
granted :
(a) by .a Judg.e before whom an arr,ested person has been 2. On granting bail, a Cour-t shall det,ermine: ·
 - 74 - - 75 -
(a) the number an.d the fina.nci,al p.o.sHi,on of the gu.aranfor.s; cesses may be made. Any such notice or process for such person
· (b) the amount of the bond; at such address shall be deemed to have been duly served on him .
(c) whether the amou,nt : (As amended by Article 6 of Law No. 84 of 12.12.1972).
(i) shall be depo,si,ted i,n Court; o,r
(ii) shall be p.aid in cases of vLol.ation O·f the obligations Article 63
rel,a,t.ing to the ba iI.
Revocation of bail
The amo.unt of the bond shall be fixed wilt·h due regard to the
circumstances of the parties concerned, and shall not be excessive. I

I. The Court competent to gran'! bail, in accordance with the

NOTES provisions . of paragraph I of Article 60, may order the revoca-
tion of the hail and may issue a warrant of arrest aga inst the
accused if:
. The only p,r:ovision in this A,rti.cle which perhaps requir.es ex-
pl,anation is the last sentence of paragrnph 2. This declares that (a) the accused b.reaks any of the conditons imposed upon
the amount of the bond shall be fixed wi,th .due regard to the cir- him;
cumsta,nces of the p.a,rUes concerned and shall not be excessive.
In . iixiug the amount of the bon,d, the Court must bear in mind (b) there are grounds to believe that the accused has left,
tjn:aHne' object of granting bail is ,not to ,penalise the accused but to
ensure 1his ,presence in the Court. The amount of the bond, there- or Is about to leave, ·the territ.ory of the Stale;
fore, must ,be .fixed with due regard to. the means. of the a,ccus- (c) the amount of the bond :
ed and t·he na.tur-e of the offence. An ·or,der to gr·aint bail but fix-
fog .an· exces·sive amount of the bon,d wo.ul,d defea.t the very object (i) is not sufficient because of fraud, mistake or similar
.oi g.Ji.anting . bail.. · Of course, «excessd,ve» i-s a relative term and caµse;
eaoh ca,se must d,epend on i,ts own meri,t and circumstanoes. But
if a poor hungry person who s.t.eals som-e food from a hotel i,s (ii) has subsequently become insufficient for any other
required to execute a bond for an amount of Sh. So. 1,000/- be- reason;
fore he is rele'ased on baH, this would clearly be excessive.
(d) any of the guarantors:
Arti.cle 62 (i) applies, for any reasonable cause, to be released
Release dependent upon fulfilment of conditions from the bond;
(ii) has died;
I. A person shall only be relea·sed on hail provided the condi-
Hon.s la,i,d down in regar,d to the bond have been fulfilled. (iii) must leav,e, or there are grounds to believe he has
left, the territory of the State.
2. Where the warra,n;t of arrest contains .an order a,JJowing bail,
the person executing t·he w.arrrnnt sh.al.J refnain from a,rr,es:ting the 2. If bail has been revoked for any of the reasons stated in sub-
accused or shall release him and shall not br,ing him before a paragraphs · (c) and (d) of the preceding pragraph, bail may
Court, "in ,accorda•nce with Article .45, provi,d~d the conditions re- be granted again to the accused.
·1a~i.ng to bhe bond are fulf1ill,ed in lime.
3. A guarantor, who has requested to be released from a bond,
3. Where any penwn is released on b,all, ·he shall give to t'he shall only be so released after the accused has been arrested in
Court his address a,t which serv;ve on him of aJJ not.ices and pro· accordance with paragraph 1 of this Article,
. I
 - 76 - - 77 -
Article 64 a. competent Judge, when he has ,grounds to believe that some
· person was confined .under circumstances which 'Would amount
Forfeit of bond money to an· offence, e.g., seizure of a person under Article ·4GO of the
Penal Cod~, to Issue a· warrant for the search for such person.
1. If any conditions of bail are broken, the Court granting the Any such pers-on .found -shall be produced before a Judge . who
bail, in accordance with paragraph 1 of Article 60, may order ·shall make such order as in the circumstances of the case may
seem proper.
that the sum deposited or guaranteed shall be pai,d over in whole
or · in pa.rt to the Treasury. ·
Article 66
2. If a guarantor fails to pay, without reasonable it.tstification, Habeas corpus
within the time-limU s_et by the. Court the ~um which the Court \
has ordered to be paid in accordance with par.agraph 1 of this· (This ·/uticle w.as repealed by Law No. 64 of 10.10.1970).
Article, proceedings shall be institute.d against the guarantor for
the recovery of the sum _in conformity with the procedure appli- Article 67
cable to the execution of civil judgments. Order to produce a person

Section .III A Regional Court or District Court may order, when it con-
siders it necessary, that any person who is found within th~ limits
of ·its jurisdiction shall be brought before it to be dealt · with
PROCEDURE FOR SAFEGUARDING according to ·1aw.
PERSONAL LIBERTY
NOTES
Article 65 · . The wording of this Article appears to be vague. It does not
say under what :cir.cuinstances a person who is found within the
Search for persons unfawfillly deprived of' personal" liberty limits of a Regional or District Court may be brought before it.
' But 'Seeing that this Article appears i.n the Section dealing with
A competent Judge, when he has g;rounds to believe that any . the «PROCEDURE .FOR SAFEGUARDING PERSONAL LIBER-
person is deprived of hi-s personal liberty and lha,t such depriva- TY» it probably refers to any person whom the Court regards as
having been deprived of his perso.nal liberty.
tion may constitute an offence,· may issue a search warrant, in
accordance with the provisions of paragraph I of Article 55, for
the purpose of finding such person. If any such person is Secti.on IV
found, the person u,ndertaking the search shall immediately take RECORD OF CONFESSIONS
such person before a Judge, who shall take such measures as Article 68
may be necessary or desirable, taking into account the relevant Rules .to be observed by a Judge receiving a confession
circumstances.
.J. A Judge may receive a confession made to him at any time.
2. . A Judge shall not r,eceive a confession unless he is convinced,
NOTES
'by •examination of the person making Lt, that the conression i,s
being made voluntarily.
0

As we have seen in the preceding Articles dealing_with arrest

and search, law always looks with disfavo~r anr unnecessary .·.3 . . The confession shall be :
and illegal restraint on personal lib.erty. This Article empower.~ · ·· · (a) ·record·ed i,n writing in full by the Judge;
 - 78 - - 79 -

(b) read over by the Judge to the person making the state- (e) the confession must be recorded in the manner set out J
. ment; in paragraph 3 of this Article, that is to say:
(c) signed by: (i) it shall be recorded in writing in full by the Judge;
·, (i) the person making the confession; (ii) It shall be· read over by the Judge to the person ·
0 making it;
(ii) th~ Ju dge;
(Hi) .ii shall be signed both by the p,erson making it and
(d) certified by the Judge, before he signs i.t, to have been the Judge; and ·
recorded strictly in compliance with the provisions o.f (tlv) the Judge shall, . before signing, certify that the
this Article. .confession has been recorded strictly in compliance
with the provisions of this Article. There is
4. Non-compliance with the provisions of this Article shall make no form of certificate prescribed by this Article ·
the confession null and void, and the Court may ·SO declare on but the following form prescribed by section
its own motion or on the request of one of the parties at any 129 (3) of the Criminal Procedure Ordinance in .
stage of. the proceedings. force in the Northern Regions before this Code
. came into operation may usefully be adopted :-
«I believe that this confession was volun-
tarily made. It was taken in my presence and
NOTES hearing, and was read over to the person mak-
ing it and admitted by him to be correct, and
it contains a full and true account of the state-
(I) This Article enunciates the rules and formalities to be ob- ment made by him». ,
served by a Judge receiving a confession. What is 1a confession is
defined in Article 149 in the following words:- Only such confessions as fulfil the above requirements shall
become relevant and admissible in evidence, otherwise they shatl
«A confession is a written or oral statement by a be null and void. Further discussion on this subject will be
person charged with an offence stating or suggesting found in the appropriate place under Articles 150 and 151.
the inference that he committed that offence».
(2) This Article should be read together with Articles 150 and
PART Ill
151. If so read, we get the following results:,;_
(a) only a Judge may receive a confession;
PRE-TRIAL PROCEDURE
(b) he shall not receive a confession unless he is convinc-
ed that the confession is being made voluntarily;
(c) for such convincing, he must examine the person m~k- Chapter I
ing the confession. What shape or form such exam.m-
ation should take, is a matter for the Judge to decide
according to the facts and circumstances .of each case; RESPONSIBILITIES OF THE ATTORNEY GENERAL
but the examination must be such as to show that the
Judae made a real endeavour to . find out whether the
confession was really voluntary.' Mere putting stereo- Article 69
typed questions is not enough;
(d) a confession to be admissible must be free and volun- Duties of the Attorney General
tary, that is to say, it must not be extracted. by any.so~t
ol threat or violence nor obtained by any direct or tndt- Except as otherwise provided by law, th~ Attorney Gener,al
rect promise, nor by' the exertion of any improper irrtllu- ,shall Initiate penal proceedings agal,ns.t an accused person.
ence;
\

- 80 - - 81 -

N ·OT ES ·(i).because, In accordance wlth the provlslons of Arti-

cle 50 of the Penal Co.de, he was by re-ason of i-n-
.•. i :A;cc~rding t~'; Afticle · 8 ·(t) (a) of the .Judiciary Law, the .firmity i~ a state of mind such as to · preclude
.Attorneyj Ge~eral: sh~IJ ;- either directly, or through his Deputies or capacity of underst.andi;ng and of volition;
. th\,o~gl\ 'tP.plic.e-:. Officers or Inspectors · authorised by law, in-
. v~~ttg.ate, institute an(conduct criminal ·proceedings. This Art!- (li) . because, in accordance with the provisions of Mti-
. c•.~ reiterate~ the ~ame ,hing insofar as the initioatioo. of crimi- . cle 59 of the Penal Code, he had not, a-t the time .
naJ . proceedings 1s·· conc~rned. of committing the crime, attained 14 years of age;

Article }O (.d) the offence has been extinguished :

.(1) by the death of the accused, under· Article 143 of
Res·ponslb!Hties of the Attorney General before a trial the Penal Code; · ·

I. . On rec·eiving a report ·of Police inves.tjgations in the manner (il) by : amnesty, in a~cordance wLth Article· 144 of the
la:id down in par.agraph .3 of Ar.tide 26, the Attorney Gener:al: Penal Code;
' .
' (a) -If he is satisfied ·that the evidence. collected provides a (Hi) when; in accordance with Artide 145 or° the Penal
prima facie case that an offence has · been committed and · Code, ·in- case of. offences punishable on complaint
· that it w,as· CQ:~J!!itted by the accused, shall: of the injured party,. the complaint has been with-
drawn and the withdrawal has not been expressly
·. (i) fran~e a . charge in accorda~e .wi.th the provisions rejected under the terms of Article 87 of the Penal
! I
,,.· ·. i. ,· of :Article 71; Code, or the injur~d party has died; ·
I

I I
(ii) present such charge ·before the competent Court; I
· ·(iv) by the compounding of a c-ontravention under the
i
I ;:: (iii) reqt1est the Cou~t to fix a date for the trial and to terms of Artide 146 of the Penal Code; i'
i . take .:· anyiother. necessal')' steps for purposes of trial,
i
excer,t in the. cases laid down · in the following ··. (e) · proceedings cannot be instituted against the accused:
:i .
pahi'gf aph; , · . (i) because, in accordance with the· provisions of Arti-
· (b{ if h~·· 1/ ~;tisfie·d tha.t the evidence colletted does not .• cle · 81 of the Penal Code, the offence· concerned i,s
: provide ' a>.prima facie case that an off~nce has been one tha,t may only be punishable upon complaint of
committed · and th.a.t it W,aS .the .accused who committed an injured. , party and no such complaint has been
made,; ·
it, may.:
(i) order further inyestigations to be made, if he con- (ii) becaus·e, in accordance with paragraph 3 of Article
siders that such invest!gaitions wil~ bring more 13 of this Code, he has, on the same facts, been
evidence to light; or finally convicted or acquitted, or orders for the
case not to be proceeded with have been lawfully
(i.i) otherwise proceed to close the case in .accordance
given; .
.! wilh the provisions of Article 72 .
I .
(iii) because, under the terms of paragraph 5 of Article
•.: ·,
.· 2J ·When it is evi'dent tha.t : ·, 13 of this Code, the necessary authorization· lo
!
i. _(a) ~~ offence was not C(!mmitted; .prosecute was not gr_anted or was denied;
(~f:th·e offence _w.~S:_,JJ,ot cbmmitted by •the accused; (iv) because, in accordance with the provisions of Arti-
(c) the author of t;he crime Ls no.t liable: cle 73 o_f thi-s Code, penal action could not be in!-
,·
' .
 i

- ·ss ·~ -
- 82 -
(d) the of.fence cµarged , tog~thdr w;tt~ · plaiJ1, concis~ state- '. a
·.tiated becaus·e of ·the expiratl-0n of the time-limi.ts .!ffi·ent of th.e acts· ccmstitu-8.ng tb.:~t.P,f:[ence; including : the .
,:,;. :
•,
. laid down in the · aforesaid Article, . . . ti.n_ie a,n.a' pLa~e of the oommissiop.. p.f' tn~ 'qff:enc~/ .-~rid I • 1,

then the · Attorney General, stating his r.ea.sq.ns. therefor and pro- bhe · per-510!1 . a.ga-h1S1t wihom, ,or_ ~he thiing 'in resp~ct ·of ;
ducing necessary evidence thereof, shall request the competent · whioh, -the. o-fif~hce w,as 00111ltl¥<lted_
0
; .. · · · ·· 1
Court to order that proceeding.s be terminated and any other (·e) the law, :an,d .the a,ntides. ~.r.'rhe .\.~w.· :a,ga.i,n-s,t whkh the -
necessary steps be taken. offence is sad d. to ··have bl:!eh .oommi.tted'; . .
(f) a statement of . the. ag-gr-a-v.a,ting circumstances, except i
NOTES for -re:cildivism, and. of okcumsfaru~s . which may warrant :
the _ap.pLi;oa,t,lon . ~-r sec4r,i~{ me~,si.ir.es; .with- t:h~ indi.c·ation i
This Article sets out in detail the action to be taken by the of, th.e a-ntkJes· of the la,w· rel~ti·ri.g th~ret?; ' ·
Attorney General on receiving a rep-0rt of the Police investiga- .: ' (g) •the p~r$0!ta\ . q~aiiJ.~; ·ot the :.inj~~ e- p.a·[tY .a_11d , ?f the
tion under· Article 26 (3). The only provi-slon that may require · p.er,soi:i, ":,Vho.:. appea,rs -to. he acquainted . with . the c1.rpum-
some comment Is paragraph 2 (c) (fi) dealing ·with crimes com-
mitted ·by per.sons under the age of fourteen years: According to ,s,ta,nces. o.f the. o.f,fenoe; . .
I ,•, j , •
FI : r)
) 1., , I •' . ' , 't ', , '• ' , ,' ' , : ' '

Article 59 of the· Penal Code, such persons are not liable but (h) ,the ind-ioat;iori' of wheth:e·r the .aoous.ed is h~l-d in cusfo<ly;
notwithstanding this provision, Law No. 13 of 8 March, 1970
(Juvenile Courts and Reformatories) prescribes a special proce- (,i) -t.he signature of th-e .auit•µ.or,iity wihci makes. the charge, and
du're for the trial of such persons before Juvenile Courts. Under the seal of the off.ice. .
Article 5 ( l) of the said. Law, no child (which means a person
under the age of.fourteen years) shall be .sentenced to impdson- 2. When,
ment; and under Artie.le 6, the Juvenile Court may deal with the (~) _the aiccus~d- i,s charge~; wi,th. mor_e _th-aq;,_o.n~ of(ence:
convi-cte.d ·child in any ·of the following ways:_:
(a) discharge him unconditionally; (i) 'the charges -shall . be .c~nsecutively ni.npbered; ·
l (ii) .the· provi,soi.ns of ;tib~·µa'.na.gr,a,phs: (d), · (e) ! (f) : and i
. (b) discharge him conditionally on his entering int_o a re-
. . cognizance, wi,th or without sureties, to be of good be- .. (g) of_ .f.he P!revfous pa.ragr~;ph ih·~_ I{ a,p,ply . to e-ach •
. haviour and to appear for sentence when called upon at · ·'· ch~rge; .. · · · · · · ·
·ahy time during such period, not exceeding three years,
as may be specified in the order; (b) two ~r piore perso.ns .are jointly charged·:
(c) commit him to a Reformatory until he attaLns the age . (i) ,t:he.chaofg.e sh._a,L~:sh~f ,tp~ o.ffence .or -dfonces wi.~h '
of eighteen years or fo.r any shorter period. · ' w,W,ch. eaoh .accused ,.is
,, ,· . . . ..• .;Cha-r.ged;
.' :·· , . · . · . · · '.
Article 71 (-i.i) ,the prov,i•suoti,s,. ~f sll!~-1p;iit~~npph~ .(:c), (d), (e.), (.f),
•: .
(,g) a,~d. ,(h) qf ·the :pr~c~din'fr -pa~'.agra·ph shall apply '
Form of charge in ·the case ·of each ·accused;: ;;·.·· .:_.: . -~~ :·\
•.

1. A charge shall be in d~plka,te .and shall contain :

(a) the name of the authority making the charge;
(b) the date on which it is made; . This Ar,ticle set·s, 9_uJ _\4e. .J:l!~\·t·!~W}ar!~ -~-OJ~.-:~·. cha~ge must
(c) th·e p~rso~al details of the accused or, if these are ~ot contain. Th~ whol.~ R~J~t: ·of f:na.~~~g, -~., £-Ft~1~~ . ~·S . to enable the
known, other : indications by which he ·can be -identlfred de-fence to . concentrate r,t,s atterilt!on ·on .t#-e .case faa-t l.t ha.s tq
meet; an<l H the cha,r-ge Is f.r.aimed ,in :s,~cht.a \r,ague ma,nner ·that
with reasonable certainty;
 -M- .
- 85
:· the :rtece~ary .P.a·rti:cul1ariS of. the offence. are not brou~ht out,
the!\. ~h~ char~,. i's ·def.eclive. This A1.ticle d@es not · say what (a) sent to -the competent · Court whkh sha.11 take the
. happena:·if a ch!rg~J ~ 'de~ive in :a,ny ·ma·nner .either a result as measures provl,d·ed for In . Article 76; and
of:.aqy.,.error .fn statlng:lne:of:fen~e -or lhe ·p-artkul1:1rs required ,to be
: stat~d "_in ·the c~a.:rge or o.f an'Y omissiet:i·:·to· sta'te the ·offence or (b) ·noUHed ro the accused.
\ _thos~ ·:p.:f~tici.t~,ats/.<But it .is. gen~rally ..tm.demood that an er.ror
he :~arge _Is not fatal. to th~ t!ial unless the
. 1ss.101'.1: m,: t_
: or::- Ofll
1 a~lJ~~d ..1s ·1~ f ~ct -nnsle.d . by· sooh error .-or· arrnss10n, and it has '1. Apa·nt from llie ca,ses provi!ded for i.n parag:raph 2 of this
occas1oneq a fa1lme-oi JUstu:e. . Ar.t ide and w.her~ ·no . ea.use for the exti.notnon· ef the ofience,:ha.s
· oocur.·red, the Attorney Genera I may ca:r.reel ·tne dedsfon . to ;clc,se
1

ILL·USTRA.no N : the ·case when· fresh e:v:i,cl:ence hais been '. r,~ived· and ·such ·fu"eih
X is cfrarg~d: with ·theft ,committed on 2 January, · evi1dehce, by i;tsel,f or in CX>njundion wfth the ·p·re-tion-s evtdence,
19.72,. In f~.t. the thef.t was com'l'Ilitted·· on 3 January, makes Lt cle.a.r that an off.enice wa1s co.m{niitted and that it was the
1972, X ·was·-Hever ·cha;rged ·w.i±h any other theft-and he
had heaird ,the whole of ev.Ldence .in . ±he .case which re- ·aocooed who commi.tted it
f err~d' fo the theft' having· been committed by · X on 3
0

iI!l.naary, 1912~ fat these drcu.mstances, it may be stated

that X wa,s not misled by thie error in the cha,r,ge amd i.t
has not occasioned a failure of justice. NOTES
'·
. ',.
Article 72 . (l) We have seen .in Ar.tide 70 that. the Attorney. .General may
ord·e·r -' fur,ther htv~stig.atton or p,rocee-d to close the case, if he Is
Closing of the case· &aUsfi.ed. that tfue. ~vi'.denaie col.leded. ,does 111of ptovi'dEfa\ orinia 'facie
case that an offem:e has been commi.tted and ,that. 'it was the
ai0oused who· commfittecf irt:.· H the d'edsionJo close tih.e c~se ·.has
;l. Whenever a decision·· reg.ar,cLi-ng the closing of · a oa·se, ,as not been. tak,en .bydhe, Attorney General J:I.ilnseM '(e.g,,:g decision
'provtded·.for by, s·µb-(p.a'.ra:gr.a•p\h '(b) · (ii'? of :p are·g·raph 1 of .AJr.tkle taken by a Pep.uty Attorney Gero,ernrl), it.'mur:sot be ·subnii.t.teq tq
:1Q h~k,not b~en\ t,aiken . by the. Attorllf!Y Genera1 himsel.£, such_de- him for oonfinna1tion: In such a c-a~. he may:
s.is1on(- ~all be . ·:oonfiraned by the .Mtor.n~y . Genera<!. For such
,,I (:a) .conf,i,rm the. deciskm to clooe the ~ .s.e; :ot
purpos'e the ·authority which"took the decision of closing the ca,se
shall forward a copy of the dedision to the A'ttbrney Genernl who .(b) ~a,ncel .the· decl,s,.ion ,to close ·:bhe catS'ei ·itnd ocd~ :
inay \;all for the whole 'fi;J;e ooneerning the 'ca-se. "--' (i) proceeding . with the case by . .frami.ng another
i . . ~:.'.. . ·. ~ . ..
. t < The Att,orney;J'.i'eperal may, ·wh_enever he do~s not think i,t fH . ..___ charge, etc.,. or
~o ccm'.firin sucn d~i,sjpn, ·cancel 1-L,and ' onder' that : . . · ---...'(iir) fttt.bher illlv.esiti.ga:t.ion.
,! ·, ,.: \~ j :pfoc~a.fugf1 e:.fak~n ag'~fnst 'th~ acc~d i.n .accordance (2). · Accor,ding to Article 16 of Law on the.Magl,strafo. of Acc<;>Unts
\., . .' :.. ·:w.itli/thei,provfai<!ltas..of sub•p.a·na.gra,ph '(a) ·of para,g.ra.ph ·1 (Law No. 34 . ol ·r4· April, 1'9-72), the ,procee&i,ngs in ·respec::t
-..... ! ·)··_- Of A_f-ti~l~:-:. 7oy··or.· . . oi o.ffen~es committed.in. ,the ma,n.agement of public ,n~~~: or o!
. . p,r0i~r~y beionging oo the .Sba,te,., Atll0nom~us.· fgeno1~s1 ,L~~~T.
(bf further h~vestigaition _be ma·de i1n accordance wlith the Adm1.n:1strntrons a1nd enter.pn,ses Wirth Sfate· pairitiCJ.!p.'aiM't i;nall -rrctf
. prov.isiolllS of s,ub·l!all':'8~1\1.Ph (b) (i) of parngna_ph 1 of . be tei:mi,nated; ootmisthstan;diing the .p.rov.i~iQ,ns o:f' ~i!S· ~J\ti<;~. · Ln
Ar.tide 70. s.uch a case, the Mtomey, General, 1·f. he .1.s no~ S'!i~!Sfi~~ . tlta,t the
evidence submHited. i's sufficient. to p.r.oye that ·t~e o·ffen,ce h.ae
.~. After wnfirmiub!lo~ by the .Mibomey ·G:enerai that a case sh.,all been ·committed anid that H has lreerr ·cainttriHet:f· ?iy ff?Ef a.ccuse~.
'o.'.e cl4Secl, .in cas~~ wh~re oonitirma:U.'On Is r~q1,1Jred,. such .dedsliOn shall request the Magistrate of .Accour.its, to ma:ke..rurtp~r m,yest1-
.UJ ,close· ijie. Cl:\f,e sihail he .: . . ., . gation. fit w.ould 'aipp-ear th:at t~e ultimate declsi'.on.:tf~** th'Ef.case
I ·· ,·.. , wou-fd s~n lie witlHhe Attonniey· Gerrerat . · · · ., ......,. ·· ·
~:' .
 - 86,- • .:.. c. ~ .,;._ ......
1 • •• •
87
. . . Ad_ide 73,
' ,:? . , I
~ : (c) lh~ 0ay on whirch the offend-er ceased comrnJtting t·hc
. L1 ftt>nce· in the case of. perma.nen~ or. co~1
t,inuirig offences, .;
Tirrie•ll~iis 'tor the i:orri~e~cemenf of criminal
~rovided that, i-n the case of offenc~s committed by ,public officers i
proceedings . 10 the . course of their ,duty, the time-limit s hall begin from: 1

.• th.e day of the terrnina.t.ion of the-ir servke i,n such capacity .

L For. th~ purposes of t•h:i<s '. Cod,e, unless the context indicat,es
4. The time-limits prescriibed i,n para,g,r:a,ph 2 (b) of thi,s Ar,ticle ,
o~?,~.rwi-~e, : cdrµin?I p,i;-oce,ed,iin,g,s shaJ.I be oonsideroo to have com-
sha,11 not ap.ply .to any peri'Od during which t.he accused is ab,sen.t
~~'. Qed . against. a. pel'S.Off a:s SO.O,ri as ,tha·t ,penf,(}n becomes an
from the country or, if present in the couti.try, is conceaJ.iing . him- ;
acouse~ . .u.n~edhe te-rmis of p·aragra,ptt l of Article 13: · ·
,; . ' . self or otherwise deliberately ia'lo~ding apprehension by the '.
2'. ,,·: Cdmhnaf proceedi'. n,gs :· auth?rities and. ·provided that in th~ case of of:fe~s :com'mitt~d by \
public .offil'e1.:; HJ the ~ourse of ;.th~r- duties, .th~, tiirtle~liinit , shall !
· (a) may · be commenced at any time in cases in which· the
begin. fr:-,rn t!J,e date. of termimi,tibn oft.heir s~tyices ;''in ·: SU!dh '1
issue of a warrant of arrest is mandatory, ,in ace.or· capacity. . < . · .t , , : .
da.nce with the provisions of . paragraph I of Article 42; ·••• I

/ (As amended by Artdcle 7 of Law No. 8 -of 26.1.1970) ::

(b) · shall not b.e comme~ce-d iin any other case, subject to. the . .
, proy._isu.ons of the. foU9wi.nrg P.a,q1,graph, after the eX:pi.ry .,
•
.t:.
:'?\ '!) of.'.'!~e·: following
-l 'i . . \ ....... . .: ' . .
Ume-limits .
· .fro~
. .
'ttie da.te
. .
of offence:
. NOTES
'·.\'.::·\ .·: , (ri) . 6.s year,s,: i'n. the· ca,se of off-entes for whi-ch the··ma,xi-
::,!lJ . :.,; .. ·, ; muin; puniis= lirneri.t iis more thin ·5 'yeairs·· · ·
•,,r 'J /•'.' ~·I I " ~' ·~ • ' ' • • • ' ' • .', I• ' ' I • _(I) . S1enerally speaking, a plea .of J.imitatiion wh.kh is available :
;·.): <.,,\ (iif.4, years, :,in' ~l:1,e case of o[fen,ces for which .the maxi• 1n c1v1l .cases c~nnot ?e taken to bar punii hment .for wha.t is ,a,n \
<:./ !·,,.. '!.i, •: :,; •. mu:m pun,ishmenit is more ,than ·3 year,s; off~:1,ce ,~ut. · this Ar~,,c~e prescribes lirnitatio.ri': ,periods . peyond :
wh1c~ · cri.m;1nal proceedmgs shaH · not be comtjienced exc,epf for :.
· (iii) .· 2· ye~~s;' ·i,n \he\a,~e of o'r'reri~.s ,f6r ~hi~h the maxis certain serious qffences for . which a w.arra,nt of arres·t j.s man- ·,
mum::pun,i,sh\inen,t ·i:S ·not m;6re :t han 3··y~ars; · dafory un·der paragr,aph I of Artkle 42.
: ·;(itv) · 6.,;IIJ,OJlitlhis, in'. the ·c.ase of offences., pu.ni'sihable wi·~h (2). Of cour,se, any' per,iod dur,in,g whioh an accused is absent :
. .. . fine only. : fron:i ~he country or is concealing hHnseH or otherwi.se deliber,ately ·
I ..... ~ I . ·. ) • i . : ": . . I : • •

Provided tha.t the time du,r.irig -which an accused a.vo1dmg a rres1 .sh.all be . exduded. .Thi:S .i•s prov.ided by . the new ,
par.agr1aph 4 ,whtdi was 'a,dded to thrs Ar.tJCl.e QY Law No. 8 of 26 '
· voluntarily avoids pro.cess of ,law shall ,be ·excluded fr.om !.anua1:Y, 1970. The other ·prov·ision in the .new paragraph deal- ..
hi.: sai'ci time-limits. · ·' · · ·· mg w.1,th the commencemen.t of limiit,ation period ilTl respect o·f
~ ~
' J. ,.. 1 ' • t • 1 I · ,. .'

';'.:·:r.:.•:' ·. ·. (~s·,amend·ed hy Ar-tide. 7 of Law No. 84,:of 12.12J972).

• • ' • ' .
off,e-nces . committed by pubJ.ire officer,s is mer~ repetiit.fon of the
alteady exisJin.g ,pr.oviso to parag.raph 3 of this Article.
( \ ..';'i ii·~;-tune~fi~libs.. R_rescri,~.ed · i,n \ub-pa·r agfaph . :·(b) of ·the .Pt'f
qe, dmg .paragr,aph shall begm .f.rom : .· ·. · . · .
• I, . ' l '· ', •·• ' , ,. •.
Ar-tide 74
:.·,.
. .
' (,d)
),.. . :th'e .d~y .of the
.
c.o.mmissiiori -of the of.fence; . the
. . . in .
ca,Sie of.
·\· . . ' · otf'ences desc·ribed" in MHcle 16 of the Penal God-e ·as·· · Authorization to prosecute
\·(,/.:..:.>.9M~~ce{ G?~mi·tted>~ : . ·. . ·:· · · .
No. prosecution may be undenta·ken wiithout the prior autho- .
};,\\~t \!Jf~ax ?r1 '.'{'P:i~~J.Q:: ac\ .~r omis&i~n 9.n}he ·_ par,t .°.(tii~. riza·tion of the President of the Supreme · RevoluUonary Council ;
· ·. · offender ha,s cea,s.ep. ~n the ca,s~ of a,btemp~ed off.enc~s;
against :
·'~· ·
 -- 89 -
;1· - 88 -
., their functions, the laiw provides .th,at act.s cl.one by them in hhr
(a) (1) any member of the Judiclary, lncludlng Assessors; excrcf,se of t:helr fundlons shou,l,d not be Lhe subject of ·P,!'OS>eCU ·

J
-!"!
.'
.. ,,
(See Note (I) below. Authotlsa•tlon i,n this ca,se is
by· the Secretary·· of State for Justice and R.elig.ion);
(ii} the · Magli-s.t,r.a,te of Accounts;
:.:..
.
~-
tlo.n. until a super,!or· authority aift.er d,ue consideratl<m is ,·of the
opm1,cm . that ~he .ads may cons,t.itu-te an offence and authori.se
such pro.secuhon ..

.r (-nr) a · Regi,onal Governor; \' Before .th!s Anticle may be invoked, .the follow:ing condiitions
. . (3) ·
. must be satisfied :-
.· i
(iv) a Distlii:ct ·Comrnisi,s.oner;
(v) a Chakma.n of a Local Council (a) the accused must be one of the ·public funct.ionaries li-st-
ed i:n .the Ar.t.icle; and
for offences oomm~tted i-n the exer,ds~ of their funeiti:ons;
(b) any Polke ,Of,f,icer, for oHence,s committed in the ~o,u,r,se (b) .he must be aocused of :
-0f: duty , a_.nd refta,tung t-0. the use of wea:pon,s or otiher
means. of physical ooercion. . . (,i) i.n ~he ca.se of offiici,als listed in letter· (a) ·or this
Thi,s p,rovfaion shaH apply to: · A>lit1cle, offences commLbted i,n the exercise of their
funcUons; and
(i) ,the per,s,on per.forming the ad;
{,U) in .the case of Po Hee Officers and others listed . in
(ii) the person ondering the a.at; letter (b) offences commi,tted in the CQtl,fSe ·of ' duty
I

(iiQ) any person who, when lawfull)'. requested, 'has giv,en and relating to .the use of wea1pons or other means
assistance in accordance with the provisions of -of physical coercion.
Antfole 27. .
(4) Now, what is meant by the .phrases «offences committed in
(A,s amended by Article 8 of Law No. 8 of 26.1.1970 an.d the. exercise of their functions » and «offences committed in ..fue
Ar.t.ide I of Law No. 27 of 26.5.1970). co.ur.se of duty» a,p,peari:ng iin thi:s Ar,ticle? The intenprebrlion of
th,~,e phr:.i~es is not free .fro:n, difficulty. The diffioulty is felt
!Ilore In .~he actual a,p,plication of the princbple underly-
mg the Article than in the enundation of the principle itself. If
NOT E·S this Article fa construed too narrowly it will cease to be ap,pl.i.-
' caible beca~se 1it can never be a part of an official's iduty fo com-
! 0) :This Art.icle . has been · amended by Ai:-ticle 8 of Law No. 8 mit an 01fence. Clenerally ,speaking, ii.n order to at:tract this
:of 26 Ja,nua.ry, . I:970, and again by Article 1 of La.w No. 2.7 of Article, .the of,f~nce must 1be so connected with .the offi.cial·act as
\!26 May, l970. The· ·~fed of: these amendments fs th,at in the t.o form p.ar:t of the same tra:n-saot.i.on and be i,n,separable f.rom. iit..
;ca,se :or Judges an.d As,ses,sor,s; no prosecution for offences· com- The pot.icy of the law its to aff,o,rd .reasonable pr.o.teotion to · pub!Jc
i'ru,i1,ted i,n the. exercise of . thek hmotiJons may be undertakean wiitih-. functionaries acting or purport,i,!lig to a.et jn the ,discharge of .their
o.ut _the _prfor authori,sation of the_Se~retary of State for . J.ustiice functions or in the course of their duti,es. This protection has
1
1 and - ReHg·ion; and ,in the case -o-i <ilther funotlonari.es lis.ied · i,n cer:tain J.imits an,d .can only be cla.i,tned in the cir.curhsfances where
Ilh~ .Arlic!c; the ·. necessary a,uthoris~tion shall be that of the' the act comipla.ined ··aga,inst a,nd alleged t-0 have been doIIe Is rea-
i~r-1,~;f~:ent o.f 'the:Supreme Revolutionairy Cooodl. .· . son~bly connected ,wHh the discharge of his of,ficial duties. and is
I •. l. . . .. . ~·-. _.',. . .. . . . . not merely a do.ak for doing the obj,ectionabl-e act. · Wh~h~r a
\ (2) ..'. The objecF of ·this Ar.tdde i,s ' p:r.im;ar.ily to guard ag~drist fri- pa:r,tiiouLa,r a-at ca,n be sa,i,d to be d<)ne in the exer.cise of aff:ic,iial
! volotis ,proceepitJg5 against publi:c of.f.icial.s. Lt is not intended duty i,s es.sen,tially a question wihich wHl have· to be·· dete.rmh1ed
\to . pi.it ·a wal F,around. them -to pr'otect them from prosecution for .,_ t on. the faots and circums.tances of each ca,se. Lt iis neither easy
I criminal ·offe-nces committed by them but to ena,ble them to per· nor possible to· 1,ay down any har,d and fast formula for the de-
: form : their functions fearlessly by protect.Ing them ·from vexa- termination of thiis q.ues.tio.n. However, the following illu.s,t,ations
: tious'- or false p-rosecutions for a.cts done in the perf.ormance of· may be of some assds1taince :- .
; their funct ions. In order to ensure this fearless performa;nce of I

" ....
.. ~-.,~ .
 - 90 -
~ 91
. ILLUSTRJ\TIONS:
(i) the or,der to briin,g the .accused before the Court, in .
(~) A Judge who takes a br1:b,e from o.ne of the parties .to a ·ccl!s•e ,a1ccordance with the :, ;provisions,, o.f' ;., Arti'cle 7~, Lf
·before him f.or de,c.i:ding the cais•e i1n hi,s favour ca,nn6t be s.a,iod . the a1cciused .i•s in cusifody.; .
· to ha:ve done.·so in the exerds,e of hi,s· fundi(ins be,c.ause ;i,t is ..,
no · p.art'of his functions to take a .,br,ihe. · The mere fact ·that (ii) the summons to a·p,pear before the Court, . in accord- .:
·hi,s posriition. as a Judge ga.ve him the op,p.ortunity to take the .-.; a,noe wJih the poov:isi.ons ·of :A.rtides 48 a.nd 49, .ff 'the .
bribe is not enough. In this case, f.or the pro·sectl!tLon of the accused •is not in custody;
Judge contra AntJcle 245 of the Penal Code (Cor.ritption for
perfor.t:niing a,n official .act) ,no au,thorJsation,un:der this Article
wou].d appear to be n,ecessairy. · (c) di.feet that the order .to briinig .the aiecused be.fore the
Cour.t or fhe s·ummon,s to a,ppear :
(b) A JU<;lge who makes a d,efama.tory rema-rk a•gainst a party
while oommen.Hng on .his demea•hour. i'ri the exerd,se of his (J) be notiified ..to the accused; j1n a,ccordance with the !
f.unotions as a Judge would a,ppear to C{)me wi.thin the ;Pt~r- pro:visoins of Articles 79 and .51, with a copy of the
v,iew of this Ar.tide a,ad the necessary authorisation· w.m be char,ge a>ttached;
requ,ir,ed to prosecute him unde,r Antic-le 452 of the Penal
·, · Code· (,Defamation).
(H) be cominuni.cated to tihe Attorney General by n:ieans '
of a co1py;
(.c) .If a police officer pick ..p,o·ckets . the prisoner in his custody,
, Jt 6~nnot be sa,i,d tha,t he is aoting in the course of duty. . His
auty is to · prevenit the es.ca.pe of the pri,soner from any law- (d) a,p,p,oi.nt a defence OoulliSel for t,he aoous~d in the cases
fu.l" custody bu1t surely not to pick-pocket him. I.n s·uch a coming withd,n the provis,ions of •sub:p·at-a·graph (b) of
case, the.re is no quest,io.n of r,equiring a.ny authori,sa.ti.on to para:gfaph 2 .of .Article 14 of the La,w on. the-:·Org.aniza.tion . ..
;<'•'.!.'
~

prosecute him under Artide 480 of the Penal Co,de (Theft). of the J,u;d,iciary, rwhen the a10cused has :not appointed h.i,s
·own d~fenc.e ·Gounisel, .arud Mr,ect tha,t the :;i..p.pofotme,nt be
(·d) IY a police officer is lawfully detai,n:ing .a: prisoner who ,oommunica:ted to . the . acc·used and . ,the -:<.sai,d cLefeI1Jce '~>·
· ·. atfempts to escaipe an,d in order to .prevent such esca:pe, the :~/~_f?
poHce oUicer sho.obs a,t him and causes hurt to h.im. · I.n. siuch Counsel; ;:.(:/~.
· '.. , .a .cas~ for any possible pros,ecution, the neces•sa,ry authoris,a- . {e) is.sue summons, i.n acwr.dance wi,th Article ·80, ·to : ; /\
..
. · tion shall be ,required under this Ar.Hele.
(:i) ,the iinjiured party;
Chapter J.J (H) ,t•he w.itnesses i,ndica,ted by the p,arties.
RESPONSIBILITIES OF THE COURTS
.N .QT E :S

Anticle 75
(t) , ..Sub~par,agraph 1(.a): In ·Orl~lnal Ap1;>:~al'No. 13 Qf f968;
·. Fixing ·d ate of trial and oth~r related measures Mohamed Egeh Ghaleb ·v.. State,· the Supreme · Cour.t held Jhalthe
fixing of the date .of k.\al of the ,aoouse~ .bY .the Ha;rgei.sa<R~gioral
Court without receivirrg a charge and the request · from the
. The comp,etent Judge, as soon as he has received the charge Attorney General. was wrof'!Jg in law. ... .
and· the .reque~t .to f.ix a da1,e for hea.rin.g the case i,n accordance
(2) .;~Ub·p~rag,ra~h '(dl): :This.:,~-~b./ Jl~;t:f!:g:~:~1~j &;.posf ; ,,.a, duty ':'on . , .;wo .. . _.
wi,th ·sub-,parngraph (a) of pa,r·a.graph 1 of Ar.ticle 70, shiall:
. ·: . the Co.ur.t :to. :a.pp.omit a :defen~ Counsel ·{:or. the accu~d fhere :h~
j,s .ctta·rg~d •Wi~h.,,an ,of:fen,ce . pµn,i's,h,able ·w,iitl;l ·~~a,th,, f~'P~!OOIJll'Tleffi
'Ja) }ix th.e date f~r lhe· hea,ring of . the trial;
for · !Ifie .or .impr.!:sonment for more :than· 20 •yea~s, If the accused
·' .. (b) is·sue : has not .a.p,pointed his own defence · Counsel. :

. •: -:·
 ~ 92
- 93 -
Article 76
Article 77
Procedure · relating tq the closing of the case
Order for the termination of proceedings and
Indicated by the parties
related measures
The competent Jud·ge, o.n receiving notice of a decision fo
close the case, in accordance with the ·provisions of paragra,ph 3 of I. In the cas·es indica.ted in par·agraiph 2 of Ar.Hele 70, the corn·
· Artlcle 72, shall : petent Judge, .on request of the Attorney General or of the
ace.used or on his own motion, shall :
(a) if the accused is in custody, order his immediate release;
(a) order that . the proceedings be terminated giving thl
(b) i.f the accus,ed . i.s subject to some provisional security reasons therefor;
mt:asures, in accordance with the provisions of Article 78,
immedia,tely order .the revoca:tion of such rnea,sures; · (b) take the mea·sures provided f.or in Artide 76 and order.
(c) if the a.ccused is on bail, order : in the ca.ses provi.ded for in the P,enal Code, the a,ppli:
cation of securi.ty mea-sures;
(i) the canoellation of the condi1tions imposed by the
bail · under the pr,ovi,sions of pa,ragr:a,ph 2 of Arti- (c) direct that such order and related measures· be: ·
cle 59;
...;,
(i) not,H,ied to the accused; a.nd
(ii) r,e!ease . the gua-r,antors f.rom their b.onds and r,etu.nn (i,i) communicated t,o the AMomey Gener.al. by means ol
.,. to them any deposiit ma,de by them with t,he Cou-rt, a copy.
~·'.. ',•
i,n accord.ance with the provisions of sub~para-
.~ . ' I 'graph (a) of paragraph I of Article 61; 2. In the cas,es i1ndicated i·n paragr,a•ph 2 of Ar.tide 70, the-order
lo ,close the case s.hall be equivalent to a judgment for the pur-.
(P) if the accused was released booa-us.e o-f the ex·p.ira1Uon of
:?} .·~· .. . 'l'he time-limits estabHs.hed f.o.r. custody, order the cancel-
pose~ of par-agrnph 3 of Arti'Cle 13, provided that even if .it -haf
:·)·.: lation o.f the conditions . imposed in accodance with para- become irrevocable, the order to cl,ose .the ca,se because; of the
graph 4 of Article 47. death of the ·accused, or · of lack of a compla,int or because thr
auth.011iza1tion to prosecute has not been granted, shall be no ba.1
. i' to the institution of penal c1doi.n on the same fa-ot,s or against thf
'I NOTES same persons, H death was rep.orted in error or i,f the complaini
i or the authorization to prosecute has · subsequently been du!~
;(I) -Tl;ie last four words of the heading of this Artide, viz., «in- made or granted.
. -idica_fctf by .the -,pa,r-!,ies» would ap•pear to be meainin~l.ess and sup-
lerfl1ious·. This beca111~_L clear if w.e look at the Itahan text of the
)headipg wq{c.h reads «Provvedimenti nel caso -di ·ar.chiviazione». N O T ES
!{2):· bn~e the A.t.tomey General h~~ dec_ided ~o; cl~~e a case
. :agai_ns·t an accused pers.on and. lllohhe.d· h1.s dec1swn m a~oord- . The pr.oyiJS.o to par.agra,ph 2 of this A.rtide i-s ~,n excepU\ln to
lance with Article 72, the competent'· Court shall order the ·1.nune- the geri·era.l . rule e~unoiated Jn parngra~h 3 ·of Artic~e 13, that an
. !diate ;release o,f th~ a_CGused i,f he ·i~.}n c4~~ody .and order.'the rev?· aocused, a,fiter havmg been fmally co.nv1cted or acquitted or ~fter
· Ji:atiorP of any: provisional secu~1~y m~asures. If he 1s not Ill orders no,t to proceed _wH-h the . case have be~n law~ully given~
custotjy; any restrictions or cond1t10.ns 1mpo~ed sihall ~e re:7oked. cannot be charged ,agam on the sam~ facts. _This prov:1so declare.
It w.p;i:11-d appear tha,t this Ar.tide does no.t give any dt·screhon to that the order to close the case 1,n the c1r,cumstanc~s set oui
the Coi.irt. !herein shall be no bar to the inS1titution of pen.a,! action on the
same facts or against the same persons.
···:~ ..
-~
 - 9.4 - - 95 -
Ar:ticle 78 2. The or,der to b.r.ing. the accused bef.ore the Court' shall be sent !
P.ro.vlslonal. application of security measures to the authority hol,ding the accused i,n .qusfody. S.uch authp rity;:
afiter,having recorded the or,d.er in the · a,ppropria,te -register, · shall :
.. .In the cases i,n,dika.ted in ArHde 166 o.f the Penal Co·de, pro- nobify the accused ·of the ·order in the manner provi,ded · for in;
v1s10nal a,P,p.lkation .of security measures or revocation of such paragraph 2 of Ar.tide. 5 J., and shall return qne of the duplicates :
mea·sures· may .be ordered.· by : of the o.rder served on the accused to' the .authority which trans-
mitted it.
(a) tthe compe,tent Judge, lllp to the time of commencement
of proceedings in a Cou,rt of fi-r.st instance; Article 80
(b) the competent Court, at a.ny other st•age of· the proceed- Service of summons on the injured pat:ty and
ings.
on witnesses

NOTES I. A summons sha,JJ be seTve<l by mea,ns of an order add ressed : ·

(a) t,o t,he. injured par.ty; ' .
Undex· Article. 166. o.f. the P-ena,l Co.de, the compefont Judge ·":~ :-.:·.
may, during the inve.stiga.t.ion or trial order that: ·:,.
(b) · to w,iitnesse,s :
(a) a- per.so.n under 18 years o·f a·ge; (·i) acqua.inted with the drcumstances of t.he case;
(fr) a. p,ers.on of unso:und mi,n·d; ' . :.\
(c) habHual drnnka'.r,d; (ii) who;s,e opi,nion on questions which require particu-, i-:
)i;,:,'.
Iar knowledge · of· science or art is · ~ound neces.saryl
(.cl) · a person addicted to the use of narcoti.c drugs; or. o·p,por.tune; · . · · : ·: ~ ·. ': ·

(~.) a: perso.n. in .a sfate of chronic intoxkation induced by

alcohol or narcotic drug.s, ('iid)· i.n ·posse,ssion,of any,bhi,ng which 'm) y be ea lied ;upon i .
· to be· produced as =ev,idence, ·. · i
be pi"o~isi?n:a:Jly ·com!11i.tt~d to a reformatory,· a, luna,tic asylum, . . ! I

.11 ·OOS·p11ta,J. or a' nur,s,mg · home. Such an or.der may b.e· revoked directing .them to a,ppear before the ·oompetent · C-0urt at the: time i
w.hem .the Judge is o.f opinion that the peroon · concerned is m and place in.dkated.
long:er. a- da·nger t.o oociet.y..
2. A summ0ns may be is-s,ued :
Artie!€ 79 (a) on request of one of the parities ih the case; or
Order to bring the accused before the Court (b) by .the Count on i,t,s own moUon, when the appearance:
of ,any of tlie witnesses mentioned in the ·preceding ;
An o.rder to bri.ng the accused hefore the Court shall consist paragraph is cons•i,dered to .be necessary or useful by such :
oi an order, ddrected to the authority holding the accused in Cour.t.
custody.,. that the ,accused. shall be brought ·before· the ,competent
€ourt at the time a,nd· place sbted, in order that such accused. 3. A summons ma,y be issued :
ma)' an~w.er a specific charge. (a) by the competent Judge, up to the time of cornmence-
linsof,ar a,s a,plkab.le, the provis.io,ns lai-d d,own i·n Ar,ticle 49 ment of proceedings in the Court of first instance;
"11a'll aP.·P.l'y to the form of -suoh order. (b) by the Pres·i,den.t of the competent Court, at any ot.her
,stage· of the prooeed,ing,s,
 ·.,-· :: -' . .... : ·'···
·j.. . . ., ., ...
, ':
...,,. 96 - 97 -
~-: ,.

l·o the contrnry, for lhe slgnnlory .to ,pl,ace, n.l the bottom of Hie
A summons shall be Issued In duplfoa!ie and contain: record .or document, iin his ow.n ha.ndwriU.n.g :
.• ( .. · (a) .t.he n'.ame of the au.t,hority issu,i.ng it;
(a) his .name, the name .of his father and the name of his
(b) .the date on which 'i.t is made; paternal g,randfabher; or
(c) the pe.~so,nal details' of the person summoned to a,p,pea,r,
!. (b) his fir.sit name and family ,name.
or, if -these are not known, other indicaHons by which
he can be iden,Hfied wi·th reasonable certainty; 2. If the person who i,s requined to si:gn i,s illitera.fe, then the
authority before whom the wr.iHen document is produced or the
' (d) persona I deta,il,s of the acoused;
oral sta<tement made shall, h,a.Ying ascerfoi,ned the identity of the
(e) the reasons for which the ap,peara,nce is ordered; person, have such pers,on's finger-prints taken with ind,eJi.ble ink
(f) name of the Court before which the person sha,11 appear, in lieu of signature . .
together with the time and p.Ia.ce fixed; :3. If . a pers,on who is req,uiire.d to sign or to pr,ovi de his fi,nger-
(g) the sig.r;i a,!ure of the J.ud.ge is,suing i:t and the seal of the pri-nts is unable, bec·ause of phy,si.cal impediment, to do one or
Cour.t. the o,ther, such fa.()t shall be no.t.ed on the record , document or
statement by the person receiving or record,ing the same.
: fi. · The s.ame provis.i,o,ns for the service of summons laid ·down
1 in A.~ lkle 51 or, i,f -the person s·ummoned i,s in cusfody, the pro-
Article 82
:?[ visicrns !,aid d,own i·n para,grnph 2 of Ar,tide 79 shall ap·ply. Date of records and documents
; : 1 6. .I In urg.erJl cases;--the person mentioned in para·gra,ph I of thi·s

'. : ., Ar·l.ii le may oe: suf11moned t,o a.ppea,r by other' means, includiin,g a Whenever the law requires that the date of any recor<l or
;i{ verbal order from a Po,l,ice Officer. document s,ha.11 be recorded, there shall be shown:
" '
{J7. If .a per~on fails to appear before the Court .at the time a,nd (a) the day;
·i: :; pla,ce .fixed in th~ summons .or by other means, the Court may (b) the month;

-·. ' ,·
1·r · .. ::.
or-der the ·Polke to . bring such person before the Court.
,-... •, . _: (c) the year; an,d
i. . . ~~RT IV (d) the pl,ace,

TRIAL PROCEDURE .AND PENAL SANCTIO~

in whioh such record or document was ma.de.
I. The indkation -0f the ho.ur is not necessary unless it is
' expressly prescribed.
Chapter I
TRIAL PROCEDURE Artide 83

Section I Presentation of statements and petitions

GENERAL PROVISIONS
At any ·s tage of the proceedin,gs any party has the right to
preserut :
Ar.ticle 81
Signature of records and documents (a) to .the Court;
(b) lo the Judge;
I. . :Whenever any reco,rd or document is required to be signed,
(c) to the Attorney Generill,
it shall be sufHcient for such purpose, unless any law provides
 I

:(....
- 98 -
- 99 -
came up before ,the Supreme Court in Criminal Appeal No. 168
s.tat-emen:ts a,n,d :p.etirti,on.s, by depos:ioting them in .their resp.ective
offices, a,n,d bei,ng bound to co,!J1munica·te them to ;a,ny o,ther party,
of 1970, A.wll Billeh Samanter · and another v. State. Th.e a·ppel-
la-nts !ile? bai.l a,pplica,tkin before .the Regional Co~rt; Mogadi.sc)<>
unl,ess the law provi-des otherw·ise. I,n re3ecti.ng it, the Cour.t merely sta.fed ,that b.a,tl could no.t .!be
gr,anted. Aip.peal .to the Court of Appeal, Mogadiscio, was re·
ject~d o,n the ground that the matter of ·bail .was in the discre-
S.ection II tion of the trial Court. On seoond a,ppeal to the Supreme Court,
the or,ders of the Courts below were .s.et asi.de and the case re-
ACTS AND MEASURES ·OF A JUDICIAL NATURE manded to the Regfonal Court, lvlogadiscio~ to consi.der the appli-
cation for bail ·acconding to law. This is wh<!t the Supreme Court
Ar,ticle 84 sai,d on the p,oinit of not stating the reasons for ,t,he judicial act
in question :- · ·
Form
«It ,is settled law tha.t where a Court has
1. l!Jnls&s they are in writing, t,he foll-owing shall be null and discretion it must exercise rhat discretion judic-
vciid ,- 10usly. The rejection of the bail application
i,n this case is a,rbi.trary an.d contrary t.o Arli·
(a) Juqgments; cle 84, Crimi-nal Procedure Code, which enact.s, .
' . ' •;

·"'~~:_:: :~
inter alia, that measures conoenning libetry :;~~·,.
(b) any other act which brings the pro.ceed,in,gs to an end must give the . reasons t.he,refor. The -0rder :or
,.,

or which may be s,ubject to a,ppeal; the · President of the Regioria I Court ;is then ·:!}\·. ·;
,' :,··
null and vciid. The or,der of the Court 'of
(c) any measure which concerns personal liberty, and war- Appral rejectihg the appe~l against thal of t~e
ra,nts o,f a.r1y kind : Regional Court ·o.n the · gr:9-unds that the grant-
ing -0r refus.al of ba,i,l is .in . the di,$,cretioh of
Provided that ·OO such wriit.ing shall be required for ads the RegLon,al Cour,t i,s also wrong in law. The
carried -0ut under the diore-oti,on of or w.ith s:p,ec.i.fk or tacit a·p•pro- reason is obvious; The Regional Cciurfs order
val · of the Supreme Revol,Rfi:onary CouncLl between October 21st, /
does not purport to be b,ased on the · proper
1969, and the date on whkh the amended Pr.ocedure Code w,a,s exercise of discretion. The .first order is arhit·
adopted for use by the N~tio,nal Security Count. rary and has none oi the legitimate attributes
of a judicial act and should have bee.n s1:t
(As amended by Article 9 of, Law No. 8 of 26.1.1970). aside by the appellate Cour.t».
2. The acts refe~red to in the previous par.a,graph shall also be :
(2) In a,nother a,ppeal (Criminal AppeaL.: No. 7 of 1970, Haji ·
(a) dated; an,d Abdi Jama and two others v. State), the Supreme Court set
asi,de the order of a.rrest and det.entio.n issued by the Regional
(b) si•gned by ,the issui.ng auth.or-i1ty, sta;Un.g the reasons Governor, Hargeisa, und.er section 6 of the Emer,gency (Restric-
theref,or. tive Measu·res) Ordinance, rn69: The Governor in hi,s order had
If thes.e r-equireme1n,ts are not complfod with, .the act-s shatl stated that the arrest and detention w.a·s ordered i,n vioew of sorrie
«reliable informatfon» he had received to the effect that the
be null and void. appellants ..yere «susp.ected o.f activities prejudicial to public order
and security».
NOTES
The Regi10.nal Court, Hargeisa, conf.i.rmed this order of the
(1) Paragraph 2 (b): 1:hi,s .s,u,b-p.ar,agraiph, ini-er alia, requiires Gover.nor on the ground t:ha.f, having seen the Repor.t of. ~he
that the acts refenred · to m pa,ragra,ph 1 shall s.tate the rea,sons offk,er in charge of the C.I.D., Hargeis.a; It was of the opinion
therefor, otherwise ,the acts shall be n:ull an·d void. This qtteSitlon that the detainees were a danger to public order and security.
·.. ; .;...,,.,..... - 101 -
Tile appella1n,ts on appeal· to the Supreme· Count contended
that. the co nfirmation of the Regio1nai, G.ovemor',s order by the (iv) ,no mention shall · be made in the deci.sion of the
~eg1,onlll Court, Harge!sa, was unwarranted !.n l,aw and uns.up- way In whiICih any lncHvidual vole was cast and,
pbrted by facts. ·
if such men,t.!on is ma·cJ.e. then the d,edsion shall be-
After discussi•ng the facts and the releva,nt la·w, it was hel.d come null and ,v-oi,d;
by ,the Supreme C?ui:t that the Gov~rnor's order w.as against .
Art.de 84 of the C~1m1nal Procedure Code because H failed to set
o~t the. reasons on whi,ch it wa,s ba,sed and was. therefore null (v) if, in the As.size Secit,ion of the Gou.rt of Appeal, any
and void. It fur.ther held that the Re,gional Court's conf.irmation difference of opinion arises over a decision on mat-
:1f (hP order was al,so --imrali,d as the Region,a.J Cour.t . could no:t ters reserved to the Judges; in accordance with
·:11I<late an act which was ill-egal in i.tself. A,nticle 12 of the Law o.n the Organization of the
JuditCia,ry, the Pres.i,d,ent s-hall have the casting vote .
Arti.cle 85
' 2. Unless -t.he law provides otherwise, when a decision is not
Correction of · errors. reserved to a specifi.c Section' of a Court, the following Sections
shall be .mmpetenit :
\\.hen in any measure bhere are omissi,ons.··or errors which:
(a) ·do . not: riiclke the measur.e niuH .and'v,oid; a,nd (a) the Criminal SecUon, in .a Distri.ct Court;
:(b) if corrected; - do not subst'antial!y change the measure, (b) ·the Genera.I .Section, in a Regional Cour.t or Court of
;:, <' ?: :f ~ection may be made even by· the i,ssning a,u.thor-i,ty on iis Ap.peal
::: '1(, ..'.: motion, but, ,where possible, the matter shall be ,brought to
. ) e ;i ~ior notice . of any i.ruter.ested party.
NOTES
.. j,;:.:·
'
Article 86 Paragraph 1.(b) (v) : Under ArtiicI.e 12 of the Judiciary Law,
in the .tri.a,! Court and the fi.r,st a,ppellate Court, the Assessors s•hall
Procedures for decision-making · par:tici,pate ion the de,c,isio11 on ques,ti:ons of fact .and the Judges
•'/ sha,11 deci,d.e on questions of law and impo.se . the punishment.
. Uriles's the :J~\v prov.i.dies -01therwise : A..ccording t,o · this -sub,;__paragrnph, if there is difference cif · opinion
.. '•
,, .~.,'-,\
1
i . (a) the Couni:--s:h';ll reach a decisi~n ' in chambers Wirth.out
between- the Presi.den!t of the .Assize Section of a Court oLAppeal
a-nd .the · Judge thereo.f on a question of !,aw or the punishment,
.-: ~ ., I.
the i-ntervention of the p:arties; the ·Pres.ident shall ha,ve a cas1ing vote.
(!l) when a Cour,t,,..oo-ns,ist,s of more than one per-son:
: (i) deli~eratlo,n~ shalt' be secr€1t and f£nd.ings shall be Article 87
reached by majority vote;
Coercive powers
(ii) no member of the Co,ur,t may abs,tai.n from voting;
(iii) v9tes s.hal.l be taken b-y .the P,resJ,dent who shall A Court, a J·udge, and the Office of the Attor.ney G.eneral ij

yo_t.'e : !ail, voti,ng .beginning w_ith the::- Jitdge IowEist may: 11

:.:,_
..·,.i.i ·. .··.:
":. !1,,'. · in ·:gri ,cl~,.,c>r ·the·/u1g.~_w-iith) he _!€last_s~nioritY where - '{
,1
:_.'I'':'· :·
i. .: .-, -~·'r;·.
·/ii6rlJnaiJ :one ·J.udg~,.15: of th'e same :g'fade. In:'A,,s; (~) call for ,the lnterv-ention of tihe Police; a,nd .,
....·'
I
I
<,' siI~/ Coti'di. As~ssor:s sha.Jl' 'vote f kst, .beginnin1g (b) o.r.der -any:thi.ng· necessary to be done ,to ensure the safe
i •
I •
.,vithAhe '. youngest; and proper condud of. proceedings.
!
!
 - 102 -· - 103
.• j
Section III Wher-e the ahove . prov.is,io1:i,s are J:1.ot. com!}lied w,ith a~d
TIME-LIMIT lhe .person does not a,ppea r, a new summons or · order :sha II 1be
issued .
Article 88
General rules Section IV
ACTS WHICH ARE NULL AND VOID
1. The time-Limits of proceedi,ngs before the Co-urt sha.11 be
expressed in terms o.f :
( a) hours; Art-kle 90
(b) days; General rule ..... .
(c) months; or
(d) year-s. No act shall be declared null and void unless such decla~a-
tion i.s ex.press·ly provided for by law. '
2. Any time-limit not fixed i,n terms of hours, which expires
on a public holiday, s·hall be exiteind.ed automat.i.ca,lly to the next
worl<,ing day. Ar.tide 91 : ·_:...
3. In cakula.t.ing the tiime-1.imHs, the hour o.r ,the day from Nullity of proceedings in general
which ,su,ch. time-1.imifa have begun .to ru.n shall not be indud- . .::r,
ed; the l·ast hour or day shall be induded in .the t.ime-limit, unless The observa,nce of t.he pr.ovisions reJa.Hng .t-0 (a); (b ). arid . .~L!'.
the la-w provi,des other.wise. (c) bel,ow is rhandatory .a,n,d f,a-il~ure t-0"obser-ve·. any of thetn sh~ll
4. The time-Hmi1t ,Lo mak:e stafoment-s, deposit d-0-cuments or render the proceedings null and v,oi,d; tte ~~~l.ara,tion .. of s-u~h
perform a,ny other a·d i.n a Court off.ice shall be deemed to have nullity may also he ma-de by .the Court on · its own :motion ?t
any stage of the proceedi,ngs : .,,. '
expired at the time when , aocordi,ng t-0 regulations, · the offke
is cl-0sed to the ,publ.ic. ·
(a) .the cons.ti.tulio.n and c,omposi,tion of the Court;
5.. Where the ex·pi•ry -0f a time-limH resul.ts i,n the forfeHure -of
a right, such time-limit shall not be extended except in ·the cases (b) the. pa.rtki-p.a,t•ion. of the Attorney ,Gener,al in the proceed
and in the manne r provided by law. ·,
ings ;
. . ' :

Article 89 (,c) the representation of the accuse,d by the Counsel in those

Time of ap.pearance cases where ·representation is · ma'ndatory.

·-·---.... ,:...
Unless the Jaw pr-0vi-des otherwise, when a ·person is requir-
ed to appear before a Court i,n ans,wer to a summons or other NOTES
order, such person shall be s,o noti-fied :
(a) ai Ieng! three nays hcfor(' the time to n1ppcnr 1 (!) As stated in the lntroduati-on t-0 this book, the object of · n
Crlml,no\ Prl()ccdurc Code Is ,lo ensurn tlial ·:ur1 uccu.~cd µerno11
(b) i-n every cc1se, in such g-ood time tha,t, bea-r,i.ng in mi-nd g-ets a full a,nd f.air trial along .certain wel.l~esta,bli,shed an~ w?ll -
the circumstances, such person can reach the Court by understood li,nes ,that accord with our notions , of na,tural JUs-t,ce.
the time fixed for the appearance. This Ar.Ucle specifically mentions three provisions the ?bs~rvanc,c
of whi,ch is mandatory an,d the disregar,d of any of which 1s fatal
 ·- 104 - - 105 -
to .the tr.ial inval.i,dating the proioeedfogs. The.sc arc: (·b) Participation of the Attorney General In the proceedings :
i Artlde 8 of the Judklury Law enjol,ns upon ,the AUorney
! Gener~! :to conduct, inier alta, crdmilnal procedings and
.(a) rhe cons.tHution .. a,nd composition of ,the Court;
a,ccor:dmg to p:iragraph 2 of Ar.ti!Ole 12 oi this Code in
Court pro.ceedings, the Offke of the Attorney Gen~r.al'
(b) ~he ,partidpation of. .the Att1:imey General Ln the proceed- shall be.. -represente.d. In other words, the . Attorney
rngs; S}eneral 1s .an .essentia! party ·in any ·criminal proceedings
Just as . the accused i.s. The ,t.erm «Attorney Gener.al~ ·
(c) tihe representation of the acoused by Counsel in those fo_r t~e ~urposes of this Code, unless the context other-
cases where representation i.s mandatory. wise md1,cates, IT!.eans the person representin·g the Offi.ce
.o:f the Attor~ey Genernl in a,ccordance w_ith par.agra:phs ·2
I
.and 3 of .Ar.tide 12 of the Code. Fa,ilure of pa.r,ticiipation
;{2) The above three fundamental req,uiremeruts for v,a.!,id proceed- by the Att~rney General sh,all render the proceedi,ngs
jngs are discussed below separately:- null an.d void.
(c) R.e~resentatfon of the accused by Counsel when represen-
(a) Co~stitution and composition of the Court: The cons.ti. tation is man~~tory: Un~er p.ara-gra.ph 2 (.b) of' Arhlcle
~u.hon and. c?mpositfo.n of the various Courts ·are set out 14 oft.he Jui~1c1ary Law, !n criminal proceeding-s, wthere
rn ~he Judiciary Law and are diiscus,sed Ln No.tes under the aoc~sed. 1s charged with an of.f,ence pu,ni,shable with
Article 2. U an accused is tri.ed by the As-she Section death, 1.mpnsonmenrt for !He or imprisonment for more
of a Regional Court consisting of .the President an,d one than 20 years, and he does not have his own Counsel
Assessor inste~d of two Asses~o:s as required by para. the Court shall appoint a defence Counsel · for th~
gra,p.h 4 of Arfocle 3 of the Judm,a.ry Law, then the p,ro- accused. If such an accused is tried without a defence
ceed1,ngs shall be null and voi.d. So is the case i,f the Coun,sel, .the proceedings ·and any resul;tant convk,tion
A.s~essors are. not drawn ,in ac.c~r-dance with the pro- ~hall be null and void. An interesting . point on the sub-
v1swns qf. Arti.cle 26 of the Jud1,c1ary Law. This latter J·~ct aros·e before the Su pr,eme Court i,n Criminal Miscel-
1

L I
point was .considered by .the Supreme Comt in Criminal laneous· Petition No. 3 of 1963, State v. Lt. Hassan Ab-
Appeal No. 92 of 1970, Dubad Mohamed Jama and 'three dulla Walanwal and others ( Somali Law Reprots Har-
others y. State. Ip this case, tohe .four accused a,ppeU.ants geisa and Burao Regions, 1961-63 p. 139. · Lt. Ha-ssan
• i
were cha-rg.1=L_\¥1th murder under Article 434 of the a~d. oth~rs wer,e ~ri~d by the Regiona-1 Court, Hargeisa,
Penal . Code · fcir caus,ing -death of two elderly pers-0ns and s1ttrng m Mogad1sc10, i.n Assize Ca,se No. 14 of 1962,
robbery under -paragraph 3 of Article 484 as read with · for cha-rge.s of wa-ging war aga:i-nst the, State contra :
paragraph 2 of Article 77 of the Penal Codie before the ~edion 121 of the Indian Penal Code (which. was . then
-Assize Seot·ion of the •Regio,nal Court, Burao. The ffrst 111 force i,n the Northern Regions) and wer.e acquitted..
· I .
a,ppellant w,a·s oonv,ided and sentenced to dea:th and the The A.t=tonney Gener.al filed Criminal Appeal · No. I2 · of
other · three to l,S years imprisonment ea.eh. Their 1963. 1n the Court of Appeal, Hargeisa, against the
appeals ti:dhe _Court of Ap,peal,· Har-geisa, were .di.smisse<d. ~cqu1ttal. Later; the Attorney General submitted a peti-
On secori-d appeal ·_to the Supreme Court, on~ of the hon :to. the Supreme Court nequest-Lng that, for reasons
~point&. ra-ised was that the trial Court had err.ed in no.t of pubhc or,der, the Appeal may be heard by the Court
selecting: the Assessors in accordance with the pro- of .Appeal, Harg~is.a, s·itting in Mogadiscio. Among other . I
. visions o:f Article 26 ·of · the Judidary Law. It was con- p,omt-s, the question arose wheth,er U was mandatory to
tended by the Advocate of the first a;ppeUaint that fa.il- prov,i,de free legal a,id at the heari,n,g of the petition for I
ur.e of .th:e trial Court to dr.aw A,ssess,or.s by lot a.s requir- transfer of venue in th.is case wher-e the offence of wa.g-
ed by la:w v-iilia,te_s the ·trial. rt was held .by the Su.p.reme ing war against the State contra section 121 of tfie
Court tha:t it .is i,ncumbe.nt upon the tnial Court to dr·a.w · Ind,ian Penal Code was puni·shable with death or impri- I
Assessors by lot as required by law and failure to do .so sonment for life. The Court held that the transfer ,proceed,
.perlain-ly resul,ts in a · defect- i,n the composition · •of the tn.gs were not «criminal» proceedi,ngs wdthi,n the meaning,
·· Court; which in turn, results in the null,Hy of the entd·r.e of Article 14 of the Judiciary Law and as such free legal
trial proceediing·s. a,iid was not mandatory.
 - 106 - -- 107 -
Ar.tide 92 necessary, hour in which the ,act commenced and 'terml;- ·..~: :.
nated; ·
Quashing to be ineffective in certain cases

1. An act wh-ich .can only be declared null and void at t.he re- (b) the names of the perso.ns present; i
. I
quest of a party shall be deemed valid, unless such request is made .I
by the party concerned within t,he time-MmHs a,nd in the ma,nner (,c) a descri!ptfon of the ads carried out a-nd results obtained 1 !
':
prescri,bed by law. (d) the statement.s t.aken from t!h1e perso.ns present;
. :....~ l .., .
2. An act which can b,e decl,a,red null and v,oi,d also by the Gour,! (e) a·ny or-her maibter.s that the authority concerned deems ' •,

on Hs own motion shall be deemed vali,d, if the Court has not S-O proper . to in.elude:
declared at any stage o.f the procee.d,ings either on the request
of the in·teres.ted party or .on its own motion. ([) the siiginature of the authority· res.ponsible for the pro; .
ceedi,ngs. i
3. Furthermore, a,n ad which can be d€1clared null and v-0id
sh.a II be deemed v.a!ri,d : !
(.a) if, notwithstan,ding a,ny irregularity, the consequences of
such ad equally af.f.ed all interested ,parHes; Sec~ion VI
(.b) if· an inter,ested party has tacHly accepted the effect of 'PENALTIES
the aot.

Article 95
ArHcle 93
Failure to comply with
.
orders
. .
of .Judicial
......_.:: _,_ Authorfty ·
Effects of a declaration of nullity ' '
I
I. When any acl is declared null and voi,d, aJ.1 subs'equent con- I. Any person who fa.its to comply wi.th an order given by a ;
sequential ads shall be rendered null a,nd void. Cour.t, by a Presi,de111t of a Cour.t or by a Judge; in accord.a nee ;
with · the provisions of thi,s Code, shall be punished, unless the
2. A Court which declares any ad null and void shall order !·hat
act involved constitutes a more serious offence, with imprison- ,
the act declared null and voi·d shall be performed again or
otherwise rect-ified where it is necessary and possible. ment for contrav-ention up to 3 months or a fine for contravention
u:p to Sh. So. 3,000/-.
SeoU.on V
2. A warrant of arres.t may b~ issued against. ,any such per.son . . . .. -
1}, ,
. ..
',,

.··: ~;
RECORD OF PROCEEDINGS ':,',

ArHcle 94 NOTES
Record of proceedings
:;1, ,

I. A written r;ecor,d of a,11 ads in a pr,o.ceeding s.hall be prepar- Cha,pter II of PART III of BOOK TWO · of. the Penal Code '
lists certain crimes against the·::.authority' of : judicial decisions.
ed by the a'llthority responsible f,or such proceedi,ng. This Artid,e . punishes -non-comp!fa,nce of judkial orders given in
2. Unless the law ·provides otherwise, the record sha.11 contain.: accordance with the ·pr.ovisions of this Code; e.g., an order given
by ·the Presiden•t -0f the Cour:t under Article 99 to a person who
(a) the indication of the place, year, month, day and, 1f misbehaves in the Court to leave the Court-room.
 - 109 -

BOOK T:WO
PROCEEDINGS' OF "FIRST INSTANCE

GHAP.iTER I
THE HEARING, .

Article 96
• 1 • •
Proceedings to be public: Exceptions

Court proceedings ·shall be open to the pubJ.ic, but the Court

may, ,i,n the i·nter.ests .of :
(a) pubUc decency;
(b) . public ..h.ealth;
(c) public order,
order that .the proceedings shall be closed to the public.

NOTES
-. : •
•, .
~

( 1) This Ar.tide oonta-ins one oJ. the fum:lamental .- procedural

rules, v,iz., that every judicial procee-ding shall be public. This is
bas,ed .o,n the· old sayi,ng _that «Justice shaJ.L not , only, be-· done but
should be seen to be done» . A' Court-noom 1·s a public place; and
1,1nlt·ss the proceedings ar{' held in cam.era i,n t.he interests of public
decency, public heaHh or public order, any p:erscm can enter it
without a,ny permit and remain there so J.ong as he does not mis -
behave. It .is not only the accused i,n a criminal case . who must
f.eel that he is being fa.irly treated but that the ·-rest of 'the publ.ic ;.
sh ::iul.d a.loo have the same feeling. · ·'.

(2) · The above rule of o·pen -court is subject t0 the .thuee excep-
tions set out in the Articl.e, viz., that t•he Cour.t may order that
.····.. the proceedings sh·a11 be· closeci- to the· pub1ic· in· the interests of:
(a) public decency, e.g., when indecent and obscene matters
have t.o be di.scussed during the trial, the Court may
order· the exdusk>n of ·women; children-· and· others· likely
to be i,njurio.usly a,ffected by hearing that stuff;
(b) public health, e.g., a member of the publ.ic apparently
suff,ering from a,n infectious or contagious disease .may
be ex.eluded iin the interests of .pu-bHc h·ealth' and·!hygienei
 - 110 - - 111 -
(c) public order, e.g.,. whe.re there is apprehension of breach Artide 98
of peace,_the Cou_rt may hold the proceedings in camera.
Duties of persons attending a hearing

Article 97 l. Any person who attends a heari,ng shall observe respect and
silence.
Rules for the attendance of the public
2. Al-I person,s attendi·ng a hear,ing shall be for-bidden to ,:.
1. . En.try into, or stay in, a courtroom shall be prohi,bited to :
(a) carry weapons or a.ny o.t.her object capable of causing
(.a) any person who is known as : injury or harm or annoyance;

(i) an iqler; (b) cause any di-sturba,nce;

(ii) a vagabo,n,d; (c) behave:
(iii) a person inclined to commit crimes against the
person or a,gainst property; (i) in a,ny way cal~ula.t-ed to inUmidaite;
--- -~ ~ I

(ii) in any way calaulated to provoke; 1

(b} ~·ny 'pe t-ion' who is O·f Un,sound mind; (iii) in a-ny way contrary to the dig1n.ity of the prnceedt
(•c) drtinkar-ds; ·inigs;
(d) perso,11,s under the age of 14 years; (d) cause any brea,ch of the peace; or
lr. a/(,e-)-. :a:ny .per.son who is dressed i,n an indece,n,t ma.nner. (e) express in any way one's feelings or opinions .
·2-!4 '>fhe· Pfesidenl of the Court may also :
r,;~:;_ J.,·:) ~·.·· "' :~· .: .
Article 99
Ji ·. c..{a') or.der i11 the interests of': Control of the hearing
·?. 1r .. ·i~ · ·, ·.-.

,. ~·· ..,....•··... ~ (,/) ·.good

'.;/t order; The Presi:d1ent of the Court shall have the power to maintain!
· , \' . . '
order at the ·hearing. Anything which the President ,prescribes
(.ii) rnoral.ity; or
f·o~ the pr,oper mainitenance -of or,der in the Gou.rt ,shall be obeyed\
·ri::v ,·;; ._ ._.., (iM). decenqy, . forthwith. ·
~.1 .. .. . .
• ;'. · ; · 'ajJy ' :person·.. to be. expelled from the courtroom whose
.• J • ,. · · - j:i'resence he do'es not deem necessary; i
NOTES !·

..,...:'.. ..(~)'\estr'ict. ·en:try '·into 'the cou.rtroom to a· limited number of We have seen that paragraph 2 of Artkle 97 empowers the ;
.. : , , p,e,r·SQ:fl;S. _. . ,
President ·of a Co111rt to expel persons from the . Court-room in the !
interests of good order, morality or decen~y .and to restrict :entry;
-s,·· .·fyo · ~pecia'l. places shall be r_eserve.d 'in the courtroom for any info the Court-room. This Artdcle give.s·: lfi'm general power to ,
prescribe a,nything for the proper maintenance of order il1 the •
pfa/Ji~~'liif. !11erribe'rs Qf. the pul~H'c'. ..- . . Court. Non-compliance with any order given by the Pres,Ldent of
 J ll'('
· · "'··· ··•qln Sli, Xnauu
- 112 - . - 113 -

the C-0urt shall be punioshed wi,t.h .imprisonment for contravention

upto 3 mo.nths or a fine f,or contravention upto Sh . S.o . 3,00.0/-,
under Art-icle 95. ILLUSTRATIONS:

Ar.tic le 100 (a) If some ev,i,dence is ava,ilable to suggest that the· accused
m~y have co.mmit-ted an offence, and it a,ppears likely that further
· Accused in custody evidence may .be obtained by .a remand, this is a reasonable
ea-use for remand .
An accused who _was -held in custody before trial shall attend .(b) It is not a reasonable cause for an a,djoumment, that if time
t.he hearing without restraint, u.nless restri.ctive measures a·re 1s granted, .the pr.osecution will search for evidence the exi-stence
necessary to prevent esca1pe o.r vfolence. of which is ent-irely uncertain .
(3) This para.gripah authorises pos.tponemen.t of. a case from time
to time but -postponement for an indefinite period .i s not warrant-
. Article 101 . ed . .· In,other words, postiponemen,t of ·a case ·sine ·dte is not per-
mi,ss-ible under thios Article. · .
Adjournment of trial
(4) . Paragraph 2: This para·gra,ph r.equ-ires that the adjourn -
ment shall not exc.eed 7 -days if the accuse,d is in custody. The
I. · A Court may or-der the adjournment of the opening or pro- reason for this is ·that the law is very jealous -0f the J.i,ber.ty a,nd
·, setution of a trial, where it considers i,t necessary or proper to will not tolerate unneces-s.arily · lo,ng detentions . .·Although this
· do so due to the absence of w:Hnesses or to other reasonable · para.graph does ·not expJ.icitly say -so, i,t -is understood ,tha,t the
cause. adjournment whe,n granted shall not exceed 7 days at a time.
(5) · Althou,gh this pa.ragra:ph is silent as to the procedure for
· 2. If the ace.used ·is in custody, the adjournment shall not a,n adjournment, it is understood that before an . adjournment is i

. . exceed
·:' 7 da.ys.
.. '
granted, the accus-ed person should be given an opportunity to i
'
appear before the Court an,d oppose the r.equest .for adjournment. I
..... i:
Also, t·he Court shall record its reasons when it grants an adjourn - I
:.··.=: ment.
NOTES
(6) It may be a usef,ul practice for the Court to issue a remand
(I) Paragraph 1: Though .the pol.icy of the criiminal law is to · warrant in such cases which could b.e endorsed each time when
bri·ng the ace-used to j,u.s.tice as speedily as possi,b.Je so that H he a f.urther remand is .granted. Such ,a warr,ant .W'i.JJ :be:very useful
is found guilty, he may be p,unishe.d, and i,f he is found inno<;:en:t, for all concerned, particularly the Prison authorities.
he .may be a.cqui,tted as early as can be, y.et at tiim~s -it becon:ies
n:ecessary to post,p.q,_i:i_e the commencement of or a?Journ a trial. Article 102
· This .Ar.t-icle pr,ov,id.es for such postponement or adjournment due
to .absence of.· witnesses or o.ther reas.ona.ble cause. T,he power Compliance with the rules of this Chapter
· gi \.'. e11 to the Courtis entfrely .discretionary which, of course, should
. he:' exercis-ed' judid9usly accordi.ng t-0 the circumstances of each
1
The provi-sions of this Cha,pter shall be complied with ; insofur
case..;· '··: •' ...'. ·..
as ap,plioable, at every sta-ge of the pnoceedings.
t:.2'.) Now, what ;s _a «rea.s~~abl~ caus-e>~? This· expressi~n . is not
.de;fi ned nor any .suer def.t.n11ll10,n: IS pOSSt•bJ;e. . It all . depends Upon
the .,t·ircumstaric,:s of each ta·se . .. Howev~r, the nature of ~~e
(:rjh1inal prciccedi,ngs, the 'p-0licy of the crimin~l la_w and the. spml
of ' this Article · should b:e kept i,n view in JUdg1,ng the ctrcum -
st ?nces of each case.
 114 - 115 -
Chapter 11 Article 104
THE OPENING OF THE TRIAL The plea of the accused

Section I
I. An a.ccused may, in respect of each count :
CHARGING THE ACCUSED
(a) raise .a,ny of the objections listed Ln Article. 105;
Articl.e 103 (,b) plead guilty;
The opening of the trial and the charge against the accused
(c) plead not guilty.
I. The Presi.den,t of a Court:
(a) havi,ng noted the presence of the accused and of the A refusal to plead shall be considered as a plea of not guilty.
Atfomey General; and
2. Except when a plea of guilty is entered, defence Counsel may
(b) there having been a,ppointed a defence Counsel for the enter a plea on behalf of the accused.
accused when so required in accordance with the pr,o-
vision.s of sub-paragrnph (b) of parngrnph 2 of Article
14 of the Law ori the Org.anisation of the Judiciary, when
the accus·ed, f,or wh,atever cau,s.e, has n,o defence Counsel, NOTES
shall read the charge t.o the accused.
2. When the charge has been read, t,he President of the Court (1) The plea of guilty must be unequivocal. It should be an
shall : admission of all the facts on whfch the charge is founded, as well
a·s an a.dmission o.f guilt in respect ·of them. An admission which
(a) ex.pi a.in to the .accuse.d, in a clear and · comprehensi,ble does not admit all the elements of the charge i,s not a plea .of
guilty.
manner, the substance of each count of the charge;
(b) inf,o.rm the a,ccused ,of the three a,nswers which he may
offer to each cou·nt in accorda,nce with Article 104, briefly ILLUSTR.ATION: ,
. pointing out the mea.ning and cons·equences of each
.answer;
X is charged with the murde~ of Y. After the. charge i.s read
(.c) ask the accused whether, in respect of each count he and explained to X and he ls informed of the three answers which
wishes: he may off.er under paragraph 2 o.f Article 103, he says «l hit Y».
(i) to rnise any objection under the terms of Arti- This ls not a plea of guilty to the charge of murder contra Ar,ti-
cle 434 of the Penal Code.. But if he says «1 w.anted to kill ' Y
cle 105; and when I found him alone I hit him on hTs··he·ad with a heayy
(H) to plea·d guilty; stick .a·s a result of .which he died on the spot»; this is an un-
equiv-0cal plea of guilty to the charge of murder.
(iii) to plead not guilty.
3, If there is more tha.n one accused, the provisi,ons of the pre- (2) In recording the plea, the Court should record the actual
ceding paragra,ph shall be observed separ.ately with regard to words used by the accused and not merely a narrative of what
occurred; ·and a plea of guilty must always be from the accused
each accused. and not from the defence Counsel on behalf of the accused.
 - 116
- 117 -
Section II
. OBJECTIONS TO THE CHARGE N O T E ·s

Article 105 (1) Arti.cle 104 deals with the three answers which an accused
may offer to each count of a charge made against him. One of
The nature of the objections such answers is to r.aise objections which ar.e:
0

. I. The accused, in acoordanc~ with the provisip.ns of sub-para- (a) total mental deficiency (Article 50, Penal Code);
. graph (a) of paragraph 1 of Article 104, may object to each count (b) under-age (Article 59 , Penal Code);
on the grounds that :· · - (,c) amnesty (Article 144, Penal Code);
(d) withdrawal of complaint (Article 145, as read with
(a) no proceedings can be brought against him, since: Article 87; Penal Code);
(i) one · of the circumstances included. in subapara-
graph (c, (d) . (iij, (d) (iii), (d) (iv) and (e) of (e) compounding of contravention (Article 146, Penal Code);
paragraph 2 o,f Article 70, is present ,in his case; (f) absence of complaint (Article 81, Penal Code);
(g) autrefots acqutt ot ·autrefots. convtc~ (Article 13 (3) ) ;
(ii) when, in the case of an offence that can be prose-
(h)' 'tack of author.isation to prosecute (Ar.t ide 13 (5) ) ;
cuted only on the complaint of an injured party, the
right to make a complaint cannot be exercised under (i) expiry of time-limit (Article 73) ; ,
the terms .of paragraph 2 of Article 21; (j) the right of making ,complaint cannot be exercised
. because the party has :
f , (b) ; the Court :is: not comp~ent: (i) expressly or tacitly renounced such right;
,, . . : . . ~ . ~ . .• . . .
- i;:...r. .. · •
:'.,f (i)' because it lacks juri,sdiction over the subject-matter, (ii) started civil proceedings f,or resti.tutlon or recovery
in accordance with Ar.ticles 4 and 7; o.f damages;

. (ii) becau•se it lacks territorial jurisdicti.on, in acoord- (iii) reached a settlement of the damages arising from
the offence (Ar,ticle 21 (2) ) ;
ance with Articles 5 and 8;
(k) the incompetence of the Court for lack of : .
(c) another · charge is pending, on the same set of facts,
before another Court; (i) subject-,matter jurisdiction (Articles 4 and 7);
(ii) territorial jurisdictio.n (Articles 5 and 8);
(d) a member of 'lfie Bench is disqualified from .taking part
! in
the pr-0ceedings under the terms of Article 10; (I) another charge is pending on the same ;set of fads,
before another Court;
(e) the charge does not comply, in form or content, with .the
· requirements of · t,his Code. (m) disquall.fication of a member of the Court (Article IQ);
(n) ·defective charge.
· 2: Furthermor:e · the accused may riai,se any other .objection and
submTt an{ bttiet request or petition which he deems useful f.or (2) It would appear fro.m paragraph ? of this Article that the
purposes of his defence. above list of objections 1s not exhaustive and an ac~used may
raise any other objections which he deems useful for his defence.
 - 118 - - 119 -

Article 106 (d) in the case provided for Ln s•ub-paragra-ph (d) of Article
105, refer the maUer to a higher Cour,t so that it may
Decision of the Court concerning objections proceed in accordance with paragraphs 2 and 3 of
Article. 11;
1. The Court sh.all decide, with respect to each objection:
(a) after having made any enquiry which it sh'all de€m (e)· in the ca-se provided for in sub-paragraph . (e) of Ar_ticle . !.
necessary or desirable with . respect to the nature of each 105, order the Attorney General to . amend '.the charge: ·s.o
objection; and · that it complies with the law, and , .if neiessa·ry:, · gr,an·t
the Attorney General a bri,ef peri,od of time for tnis pur-
(b) having heard the opinio.n of the Attorney General. p,0se.
2. If an objection raised in accordance with paragraph 1 of
Article 105 i_s upheld , the Court shall : 3. In ev,ery other case, the Court sh·a:1r ' fake such act.ion
regarding the objection as it deems necessary and proper.
(a) i,n the cases referred to in sub-parag,raph (a) of para-
graph 1 of Article 105:
(i) order that the proceedings against the accus.ed be NO l ES
terminated, giving the reasons f.or such d.ecision;
(ii) order lhe ap·plica.ble consequential measmes, a.s pro-
V·i,ded in Article 76, · and ordering, i,n those cases Note (1) under Arti.cle 105 sets out the various objections
provided for in the P.enal Code, the .application of which may be taken by· an accused .when charged with an offeµce.
This Article deals with the decisions · which the Court shall make
securi,ty measures. with res,ped to such objections. These are specified in paragraph
2 and may he s.ummarised below :- ·
Such decision to termi,nate the proceedings shall have the
effect of a judgment for the purpose of paragraph. 3 of Article 13,
and the provisio,ns of paragraph 2 of Article 77 shall a·pply to (a) i,n cases set out i:n letters (a) to (i) in Note ( 1) under
such decision; Artide 105, if the objection is upheld by ·the Court, it
shaH order the termination of proceedings against 'the
(b) in the cases provided for in sub-paragraph (b) of Arti- accused stating its reasons and order .:the release· qf the
accused if: in custody or order other applic.able·consequen-
cle 105, order that the case be transferred to the oompe- tial measures· prescribed in· Article . 76 · ·and . order the
.tent Court;. application of security measures according to PART VII
·Of BOOK ONE of the Penal Code, e.g., commitment to a
(c) in the case provided for in sub-paragraph (c) of Arti- luna,tic asylum Ln case of persons of total mental defi-
cle 105 : ciency;
(i) if the Cour.t is satisfied that the other Court i·s cqm- (b), in cases Sflt out i:n letters (k)
(!) -··and- (m) in the said
I
petent, order that the .case be 'tra11sferred to the Note ( 1), arrange for the case to be dealt with by the
competen.t Court; competent Court;
' :'
(ii) if the Court is satisfied that it is competent, raise (c) in case set out in letter (n) in the said Note (1), order
the question of conflict of jurisdiction in accqr.dance the Attorney General to amend the ch.arge · to comply
with Ar.ticle 9; with the law.
':_:,::··
- · 120 -- 121 -

Article 107 2. A plea of guilty may be withdrawn by nn accused nt nny

moment of the pr.oceedlngs In a Court of first Instance before
..:..,. ... Measures taken by the Court on Its own motion
judgment is given and a plea of not guilty entered Instead.
I. In the cases provided for in Artcile 105, the Court may act
also on its own motion in accordance with the provisiori•s of Arti- In such case the provisions of Section IV of this Chapter
shall be observed.
cle 106, ha ving heard the Attorney General and the accused.
. .
2; . When the death of an accused has been asc_ ertained, the
~

.•
NOTES
Court . shalL on· its own . motion order tha,t proceedings be termi-
n~ted. As far as applicable, the provisions of Article 77 shall Paragraph 1: It will be noted that the Court has a discre-
be observed . · ti-on to accept or not to accept a plea of guilty In respect of offen-
ces punishable wi.th imprisonment for less than 10 years or a les-
3. The pr.ovisi.ons of this Article, insofar as ap-plicable, shall be ser _punishment. If it accepts the plea of guilty, it may convict
the accused and sentence him accordirig to law. If, on the other
obse rved at all stages of the proceedings. hand, it has reason to believe that the plea of guilty does not
correspond to the truth, it may order the trial to proceed in the
normal way. But in respect of offences punishable with imprison~
,•. :. Section III ment of 10 years or more or a heavier penalty, the plea of.guilty
,:-.
PLEA OF GUILTY may not .be accepted and the tri.al should proceed In the normal .
. ·,>,:·.·' ' . . ~. ·.
,' way. As a matter of _practice, Courts prefer not to act on the
., . plea of guilty In capital cases.
. ; , ·· ·.
.,:,
'1
:·,
Art_icle. 108
:! ·. Consequence of a plea of guilty
. I
Section IV
·-:1. . When . an
accused pleads guilty to a · charge, in accordanc_e PLEA OF NOT GUILTY
with the provisions of sub-paragr,aph (b) of paragraph 1 of Arh-
c)e' 104, the .Court may:
Article 109
(a) if the maximum punishment for an offence i-s imp rison-
Effects of a plea of not guilty
ment for less than 10 years or a lesser punishment:
(i) immediately pronounce. judgment _of cpnviction in 1. When the a;coused pleads not guilty, in accordance with the
accordance with Chapter IV of this BOOK, on the provisions of sub-paragraph (c) of paragraph 1 of Article 104,
· ·basis of the plea of guilty; the Court shall proceed in accordance with the provisions of
,Chapter III of this BOOK
(ii) on;l~rJhe trial to pr-0c-eed in accordance wi~h Chap-
ter III of this BOOK if it has reason to believe that 2. With the consent of the Court, a plea of not guilty may be
.the plea of guilty does not c-orres.pond to th_e truth; withdrawn by .an a.ccused at any stage of the proceedings In a
Court of first instance befor.e jtidgment is given and a· plea of
. ·' (b) i-f -the maximum punishment for an offence Is impri~on-
guUty entered instead. ·
merit for 10 years or more or a mor~ serious punish- .,
'. :
ment:' order · the trial to proceed in accordance with Chap- 3. .· In such case, the provisions of Section III of this Chapter shall '
ter III of this BOOK. be observed.
 -- 123 -
- 122 -
a crime has been committed allld that the accused has commit-
NOTES ted it. The provisions of this Article are similar to Article 163
which decla.res that i,n crimi,nal pmceed,ings the pr<:isecution shall
(I) Once the accused does not plead guilty the trial has to pro- prove beyond reas,ona·ble doub.t : ·
-:eed in the normal way n accordance with Chapter III of
BOOK TWO of this Co.de w ich means the hear.ing of the=prosecu- (a) that the alleged offence was in fact committed; and
tion and defence witnesses. (b) that the aocused committed it.
(2) Jus,t as a plea .o,f guil · may be withdrawn by an accused at (2) T·he question of burden of proof in criminal proceedings was
any moment of the proce clings in a Court of first instance b.e- discussed by t.he Supreme..Court i.n Criminal Appeal No: ·1 of · t961,
fore judgment under par raph 2 of Article 108, similarly a plea Ahmed Sultan v. State ( Somall Law Reports, Hargelsa and Burao
of not guilty may be wi.t drawn under .paragrnph 2 of .this Arti- Regions, 1961 -63, page 1). This is what the Court said at page 3:
cle, but this shall be w-Hh the consent of the Court. This limita-
tion i•s for the benefit of 'the a.cCU$ed and a Court wl}l not normal- «It is well ~ecogn.ise,d rule of criminal law
ly grant the consent unless ·it is convinced that the accused ls that the onus of proving everything essential to
doing so of his own free will. the establishment of the .charge lies on the pro·
secu.t.i,on. The evi•denc.e should be such as to .ex-
clu.de t.o a moral certainty every reasonable
Section V doubt .of the guilt of the accused and in malt·
THE BURDEN OF PROOF, ALTERATION ers of doubt it i.s safer Tcf ac-qui.t titan to con·
' .
demn. Thi,s pri,r10iple has been stated by Lord ,.,
""'"'
OR WITHDRAWAL OF THE CHARGE Chancellor in .Woolmington v. Director of
Public Prosecution ( 1935 A.C. 462) as [ollows:-
Article 110
«Thr,oughout the web of the Engli·sh Crimi-
Burden of proof nal Law, one. golden thr.ead is always to see;
that it is the duty of the prosecution t.o prove
In the cases provided f,or in : the prisoner's guilt, subject to matters as to
defence of i.nsanity, and subject also to statuto·
(a) sub-paragraph (.~) (ii) of paragraph 1 of Artide 108; ry excepti.ons. If at the end of, and on the
whole of the case, there is a . reasonable doubt
(.b) sub-paragraph (b) of para·graph 1 of Article 108; created by the evi,dence by either the prosecu-
(c) paragraph 1 of Articl~ 109, tion or the prisoner, whether the prisoner
killed the deceased with a malicious intention ;
the prosecution has not made out a case, and
the Attorney General shall have the burden of proof of es.tabllsh- . the prisoner is enUtled to a.n acquit.ta!» . ·
ing that:
(3) Thi,s same princi,ple was restat~d by the Supreme Court in ,.
(i) a crime was committed; another Appeal (Criminal Appeal No. 6 of 1961, ·Hassan Warsa- '. .
me Arraleh v. State - Somali Law Reports, Hargeisa and Burao
(ii) the accused committed it. Regions, 1961-63, page 8). Thus the ~u~damental basis · of
criminal law is that the Court has to be satisfied not merely of the
NOTES probability, but of a reasonable certainty of the g~ilt of the
.accused. If on the evidence adduced by the pr,osecution, a rea-
sonable doubt arises as to the guilt :of the a.ccused , he m~s~ have
(1) According to this Article, "in case where the trial of . an the benefit of it. T.he prosecution cannot exped co.nv.1ct1on of
accused is to proceed in the normal way ?ecause the ·plea ~f gmlty the ace.used at the hands of the Court unless: and until ,t. prove.s
is not accepted or acceptable or there 1s no plea of gmlty, the il~ case beyond any reasonable cloub\. 1f lhe prosecution ev1-
burden of proof shall be on the Attorney General to establish tha.t
 - 124 -
- -- 12S -
:lence a~." whole is unrcl.iable and cannot be accepted as correcl
for spec1f1c rea~o.ns, lf1e silence of the · used can he of no avail rily of tile AHornL'Y General lii111~elf sh:111 IH~ rl'qllirL·d for with-
l.9.) l.!iLJ ' ut on for s conduct of silence can ·never be er- drawal of the charge.
m1tted t~ become a substdtute or pr,oo y e priosecu ,10.n. . e
. ,.osE'cution must st~,nd O·n i1ts own st . n th aind · ot se.ek s~ (As amended by Article 6 of Law No. I of 17.2.1968).
2ort fro~ th_e poss1• le weakness o.f the de ence. Fals,ity O e-
. f~nce, while 1t may lend assu.rance to other evidence of a co.nvin-
1

cing character aga,i,ns·t ,an ace.used, oannot by if.self form the basis 2. In 'the cas,~s pr,ov,ided f,or in the previ,ous paragra,ph, the
of oon.victi_on. ~ve,n an innoce11it •person may set up a false de- Court shall 011der, giviong the reas·ons therefor, tha.t the proceed -
f e:i-:::e. m his anxiety to save himself. J.n short, it is for the pro- . ings ·be ter.mina,ted for the offence in respect of which the charge
,ecu!Jon to pr,ove the guilt of the accused person and not. for has been wi1hclrawn, a.nd shall order any .measures that may be
'he accused to prove his Lnnocence. required by .Arti.cle 76.

Article 111
3. An · order t·hat proceedings shall be terminated, given in
-:',l_ter.ation of the charge accordance with this Article, shall be equi.valent to a judgment
for the purposes of paragra.ph 3 of Article 13.
I. With the consent of the Court, the Attonney General may alter
, the charge, in ,whole or i,n · part, at ainy sta,ge in the proceed-
. . ! ings.. befor.e a,.;Co.itrt of first insfa,IJc~ before his f.inal summation.
i ' . '·'. ·... ·. ·.: .-:· . : . . . . NOTES
'. 2. Iri case '· 6f · an alteration in the charge, the provisions of
,, : Art:cle 103, insofar as applicable, shall be observed.
(1) Paragraph 1 of this Article was ,amended by -11:rtlcle 6 of
3,. .. If an alte~ation to the charge takes place after the p,rocess Law No. 1 ,of 17 February, 1968. The effect of this amendment
I of taking evide-nce at the tri.al has hegun, the Attorney General is that- prior written .authority of the Attorney General himself
· and .,the · accused may : is required for withdr.awal of a charge for an offence for which
the minimum imprisonment prescribed by law is more than 3
(a) re-exami,ne, in tihe light of. such alteration, any wit,ness year.s .
alrea·dy examined;

(bJ produce fresh evi,dence with regard to the a 1terati-0n. (2) · Paragraph 3: This means tha.t a,n ,order of termination of
proceedings on withdr.awal of ,1 .charge has the effect of an
!· In every case of al.teratLo.n of the char,ge, t.he a.c,cused shall, acquittal on such charge and the a,ccused cannot be proceeded
i .:e:ieve~ he so requests, be gfven rea,sonable time in which tD against ,001 -the same fads. I.n -other wor,ds, he ca.n pl ead autrefois
1

, ·~C'parc his defence. acquit.

Article 112
ILLUSTRATION:
Withdrawal of the charge

: I. ·with the consent. of the Court, the Attorney General may X is charged with causi:ng death of a child immediately ·after
.. iwithdraw the ~harge, in whole or i,n part, at a,ny moment of the its birth for the purpose of safeguarding honour (Infanticide for
;·p~oce'.ec!ings . i·n .th-~ Court of first instance before judgment is reason of honour contra Article 435 of the Penal Co,de). The
·' igt.:e~.'. Where the minimum pu,nishme1~ rnvi,ded by law for the Attorney General decides to withdraw the charge and gives .his
written: authority :for the same . The Court grants its ~onsent and
11ffence
. . . .charged is more than three ye~-rs, the prior written autho- orders the termi.natfon .of the prioceedin.gs. X cannot be charged
again on ·the same facts.

I
 -·- 126 - - 127 -
CHAPTER Ill in coming to a correct decision by placing all the material evi·
EVIDENCE AND SUMMATION den.ce before it. It is no part of his duty to secure a conviction at
all costs. The only legitimate object of a prosecuUon is that ·
justice ·be done.
Article 113
Applicable provisions
. Ex<:ept a~ otherwise provided in this Chapter, the presenta- .
Article 115 . :
tion and hea~1ng of evi,dence shall be governed by the provisions Order that proceedings be terminated for lack of. evldenc~
of BOOK III -of this Code. .

I. When th,~ ca,s-e for the pwseZ'.uti.on is c,onclucied, the Court , if '
Article 114 it considers that the evidence add•uced, even if s·uch evi,den~e is '
unoo.ntested, is insufficient t,o pr,ove the guilt of the accused, shall,
Action of the Attorney General . either at the request of the accused or on its ow,n motion and hav-
ing beforehand asked the Att.orney General whether he iri'.,~ncls to
I~ t.h.e cases provided for in Article 110, the Att.orney G~neral withdraw the charge in accordance with Article 112:
shall in1t1ate the hezring of L'videnl'e, slali,ng briefly:
(a) order, giving the rea~ons theref.or, that the :irot:eecling:; :
(a) lhe n,J!ure ,1nd C:elails or lhe offenrc charged;
aga-inst the a,~,::u-serl be ter.minated with res;iect to the '
(b) the evidence a,gainst the aZ',cused. offence f,or which guilt has not been pr-oved; ~nd
The Court shall then hear the ciJsc f.or the prosecution.
. .,,....:.,_ _
(b) -order any measures that may be required by A: lirle 7li.
NOTES
2. An order that pr,oceedi.ng·s be terminated, given in 11 :,:ord,111,:c
1

with this Arti.cle, s.hall be equivalent to a judgment f-0r the pur-

( 1) .1t is for. t~e Att:orne~ General to open the case for the pro- poses of paragra,ph 3 of Artkle 13.
secution by g1wng an ou.t11:ne of the evidence and the leading fea .
tures of the case. I.n d.oing so he ought to sfate all that i:t is pro- ·
posed toO prove. In .other words, he has to state by what evidence
he expe~ts to prove the gui_H _of the accused. This should always ..
-: ·.•
be .c-0,nfmed to matters which are necessary fo prove the charge. NOTES
Th1,s 1s not t~e stage _at .which doubtful questions -of a,dmi-ssi,bHity
sho0_ul,d be ra:1-sed. .It .1s 1improper to open any maHer in respect of
which no evidence 1s intended t.o be or can be addu<:ed a.t the tri.al. ( 1) Paragraph 1: If at the end of the pr.osecution case it is
T,opics of prejudice connected with the cha.racter of the accused ro:iside~ed by the Court that the ev•i·dence .adduced is insufficient
should be carefully excluded . to prove the guilt of the accused, it shall, a.t the request of the
accused or on its own motion, but in either case giving the
(2) It is well-established rule of law that it is the h9unden duty Attorney General the option to withdraw the ch·arge, order the ter-
of t-he prosecution f.o place before lhe Court all evi•dence relating mi,na tion of pr.oceedings in resipect of the charge and order other
to the case which is at its dis-p.osal. Of course, the pr.osecution applicable measures under ArHcle 76.
ca,nnot be ex·peded, much less enjoined, to pr.oduce evidence which
I.ends to demolish its own case, but it has to present it in fairness (2) Para~rraph 2: The war.doing of this paragraph is similar to
in its true colour without twisting or stra.i,ning it for secur-i·hg a that of paragraph 3 of Article 112 and has been explained anci
conviction. The Attorney General is ex,pected to assist the Court illustrated in Note (2) under that Article.
~ ·•·..;,.,,.,,.. .

·- 128 -- -12\
Ar-tide 116 / £ (} {')(1/-c ~
Action of the detfoc~
Article I 17
Rebuttal of evidence

I. Except in such cases as provided for in Article 115, the I. · If the accused. produces evidence that the Attorney General
Presicienl of !he Court shall inform the accused that he may : could not h'ave been reasona.bly expected · to foresee, the Court
. . ..
may allow the Attorney General to pr.od~ce evi,dence in rebuttal.
.
(a) prod-uce evidence in his defence: .
2. ·· In such case as provideci [or in the preced.i,n,g p.aragra,ph, the
(b) make a statement; accused may, aHer such evidence in rebuttal ha,s been produced by
the Attorney General, produce further evidence i'n his own
defence.
(i) on oath; .
(ii) not QO oath,
in an~er ta
the c:b_arge, NOTES

2:, After the provisions of the previ.ous paragraph have been Paragraph I: . Article 114 deals with !·he prosecution case
c'omplied with , .the a.ccused may take up his defence briefly stat- nnd Article 116, with the defence. If dunri,ng his defence, the
ing : accused produces evi1detice which the Attorney General could not
. !
h.ave been reasonably ex.pected lo f.oresee, he may be allow.ed to
produce evidence in reply or rebuttal. But such evidence must ,
(a) the general lines of his defence; as a general rule, be strictly confi.ned to rebutting th<' accused',s
ense· and must not merely co,nfirm the prosecution case. When-
(b) !he n,ilure of the evi.dence he proposes to produce -in his ever the accused in defence gives evidence of fres-h matter which
defence: . the prosecuHon coul,d not have foreseen, the prosec'lltion should be
aI lowed to oo.ntraddct it.

~g
The Court shall hear anci examine the evidence for the
defence. Article ll8 . - (
Evidence ordered by the Court on its own motion
:l. lf :llme is more than one accused, the Court shall esfa.bf.ish
!h,,, orde r in which each ace-used shall pr.oceed ·with his defence.
..... ···- .... A Court may or-der, on its own motion, tha·t evj:dence be -p.ro-
duced which it considers proper and use.f.ul i.n order to ascer,tain
the truth.
NOTES

NOTES
. If .the proceedings are not l·erminated under f..r.ticle 115 f,or .
ihsu[fkicncy -of prosecution evidence, t,he Presi.dent of the Court .,C
. ·~
'' ·:. dhall iilforin the accused of his ri,ght of defence. This right i-ndu: (I) This Artide gives very wi.de powers to a Cour.t to order -the
cjes pr,odu.ction of evid.ence i.n his'. defence a.nd making a statome11t production -of any evidence that i.t oonsiders proper an,d useful to
.. ,l

· o:, oath . or ,not on oath . . The difference in the cas.e of a state- g-et at the truth of the case. The chief functfon of· a Court is to.
ment on oath and one not on oath is important for the purposes of see that justice is done ·between par-Ues, and a too rigid adherence_
c~o5:;-exc1mination o-f {he accused . Under Article 206, the accused to set r-ules of evidence may someHmes defeat !-he ends of justice.
If attenti,on is co.nf,i,ned only t.o the evi.dence brought forw.ard by
is not liabk to be cross-examined on an unsworn statement but the prosecution and the defence, appropria,te materi·al for a · just
may be cross-examined on a sworn statement.
 - 130 - - 131 -
dent of the Court shall withdraw the right to continue such
decis ion may not .be available and the truth may not always
come out. Examination may n·ot have been conducted properly address from any person so abusing such right.
a·nd things may have been left unsaid or obscure intentionally or
un-intentionally. It is for this reason t.hat this power Is given t-0 a s·. The hearing shall be considered closed when : the summations .1 ·,
Court. It is -not only Us ri·giht but Hs duty to pr.obe further info .to the Court are finished. ·
matters to get at the truth . Of course, the power of ordering e\lli-
d.ence by the Court must, as all ,discretionary powers shoul,d, be
exeroi_sed ju·dici,ously and no.t arbit\rarily. The sole purp,ose is to
do justice by getting at thE! truth of the case. · NOTES
,·
(2) A question may arise as t-0 the right of parties to cross-exa-
mine a witne.ss examined by the Court on its own motion under Paragraph 1 (a): It w.ill be note.cl that it is obligato~y on
1

ihis Article. When a wit.ness is called by the Court under this the part of -the Attorney General to sum up -nil; case after all the
Art-icle, t·he prosecution a.nd th.e defence are both e.qu.ally entitled evidence· ·has been pr,oduced. In s,uch summi,n,g up, he may make
lo a full cross-exa.rnination of the wi-tnes,s on all matters releva,nt such comments and observa,tions as he consi-der.s necessary and
lo the inquiry. express his .opinit0ns on mat.\ers of f.ad and law but in faimess
such comments sho.ul,d be confirnid to proved f.acts wHhotit any
Article l 19 bias or und.ue empha.s,is on any aspect of the case i-n an · at.tempt
to secure convkNon at all cost,s. ·
Summations and closure of the hearing

1. After all the evidence has been pr,od-uced : Chapte,r IV

(a) the Attorney General· shall sum up h.is case, ma,ki,n,g such THE JUDGMENT
c-omments a-nd observations as he · co,nsid.ers necessary
a.nd ex,pre.ssing his opinion on matters of fact and of Article 120
law, which in his view the Count sho·uld accep.t;
Deliberation of the Court and pronouncement of the judgment
(b) after the summa:Hon by tile Attorney General, the de-
fence shall sum up its case. If the a,ccused is represent - l. The members of the Court who have partidpa:ted in the hear-
ed by more than one defence Counsel, each such Counsel ing s·hall deliberate, J.n accor<lance with the prcivisoins of para-
shall conf.ine his summation to particular arguments, gr.aph 1 of Article 86: ,.,.,.
objections or requests which have not been raised by ,:: ·

other Counsels for the defence. ·(a) . immediately; or

(b) as soon as possiibl.e,
2. If there is more tha,n one accu-sed, the Court sihall det.ermi.ne
the or,der in which they shall a,ddres.s the Court . after the clos,ing of the hearing.
3. Wit·hout the Court's consent, no further statement shall be
2. In its deliberations, the Court shall decide :
allowed. Should he so reques,t , the accused shall always be
allowed to have the last word.
(a) -preliminary questi10ins;
4. If the Attorney General , the a,ccused -or defence' Counsel (b) questi,ons of fact and of law regarding the charge; and
should abuse the ri,ght to address the· C6ur,t, by introducing ur:i-
necessarily l·ong s-peeche,s, irrelevancies or in any other way, and (c) if ,necess.ary, questiions reg.anding the a.pplication of the
two successive warnings a,bout this remain unheeded, the Presi- punishment an,d security measures.
 l0.t. -
- 133 --
3. · The President of the Court, or a,nother · member of the Bench, ' I

s:hall immediate!y a.f,ter the · del.jheration, rea1d ithe pa.rt of the (g) the punishment imposed in respect of each offence of
judgment rela:ti.ng to the question .of guilt a,n·d the sentence, If which the .accused has been found guilty together wi1h
any:
a~ny security measures which may be ordered;
(a) in open Court;
(h) the date and the si,gnature of .the Pr,es,i,dent of the Court
(b) in the presence: and other members of the Bench. ·
(i) of the accused; and 2. A judgment shall be null and voi.d:
(ii) of the Attorney General. (a) H no grounds are given, or i,f they are contradictory;
If the accused is acquitted or sentenced to fine only, the (b) if the part of the ju.dgment relating to the question of
p~esence of ·only his Counsel or a representa,tive may be consider- guilt and the sentence, if any, is lacking or incomplete
ed sufficient. · . . in any of i.t•s es•s.ent-ial elements .

4. The reading of the part of the judgment referred to in

paragra-ph 3 shall :5e·-equivalent to the notification of the judgment · NOTES
to all the part.ies present or represented.
· Paragraph I of this Arti cle sets .ou.t what a ju<lgment shall
coptai,n and para-gra.ph 2 declares in what ·Cases a judgment shall
Article 121 be oonsi,dered as null and void. In Criminal Appeal No., 100 of
1967; Hassan Isman All v. State, one of the questions that came
Form of judgment up for clecision before the Supreme Court was whether,: or not,
the ·.Jack of the Assessors' si·g,natures renders · the judgmer1t null
and vord . . Paragr,aph 1 (h) -0f this Article requires that the judg:-
I. A judgment sliall -be prepa.red by a President of a Court in menf shall contain «the. signature of the _Presi-dent of the Coud
full and sha·ll ocmtain : and -other members of the Bench ». Uruder Ar.ticle 4 (4) of tlle
Judiciary Law, the Assessors are members of the co·urt. How-
(a) a preamble in the name of the Somali peo,ple · and the ever, from para,gra,ph 2 -0,f this Article, it does not appear that
name -of t·he tourt pronounci.ng t~e judgment; the judgement shall be null and void if the As,sess.ors' si-gnatures
are la,oking. But paragraph 2 of Article 84 provides that a judg-
(b) personal details of the accused or anything else which ment which is not signed by the «issuing aut-hority» shall be null
may identi.fy -him; and voi•d. Thus the combined effect of Article 84 ·and th is Article is
that a j,ud,gmen.t shall be signed by a.J.I members of the Court
(c) a statemen t of ,the facts and cir·cumstances which form and H. it is n-ot so signed, it shall be null and void. In ca~s where
.t.he subjec,t of the charge;· the C-0urt is composed of Judges alone, it is, . those Juages ".'ho
are the «issuing auth-0rity»: and in ca,ses where the C:ourt consists
( d) a concise s_tatement of the factual and legal groun,ds of Judges and .Assessors it is the whole Count an,d no,t -the. Judges
on whkh the judgment is .based; who issue the judgment - in the present case, the-.Ass1ze . Sec-
tion of the Court of Ap,peal. The law clearly states that the JUdg-
(e) reference to the articles of \-aw on which the judgment ment sha-11 be prepare.cl by the President of .the Court and tha;t . all
is based; the ,members of the Court sh all si,gn H . The object of the require-
. ·~·. . ment that the Assessors should sign tile judgme!lt appears to be
([) the acquittal .or co.nviction of. the accused in respect of that their sign atu re is a valid proof that they have participated
each offence charged ; in the decision of the case . It was held by the Supreme Court
t-hat in view of the aib.sence of the Assessors' signatures, the
judgment was ·null -and void .
, · ..
·<
 ··,
- 134 - _ ,, 1:35 -
Article 122 NOTES
Acquittal of the accused
(I) Paragraph 2: This para.graph requ.ires tha t' t.he Attorney :
When a Co.urt finds an accusl!:d not guilty of the charge General shall prove previous convictio.ns but does not prescribe :
brought against him, it shall : the mode of such proof. H-0wever, the question whether there are [
previous convictions recorded against t,he.:accused is a question !
(a) pronounce judgment of acquittal; and of fact and it must be proved strictly in accondance. with the rule s l
of evidence, and unless so proved, no · Court can take them : into
(b) order any measures that may be required by Artkle 76. consideration. Normally, previ.ous convi,otions are proved by the :
production of :

Article 123 (a) an extract certified under the hand of the officer having
the custody of the records of the Court in which such
Conviction of the accused c-onvictions were ha.d ; · ·
(b) a certHicate signed by the officer in charge of the Prison
l. When a Court find s an accu-sed guiHy of the charge brought in which the punishment was served ;
agai:nst him, the Pr.esiident of the Court shall :
(c) the warrant of commitment under which the punishment
(a) state in o,pe,n Court , in the form laid down in paragraph was imp-0sed.
3 of Article 120, that the accuse.d has been found guilty; (2) Proof of previous convk.tions becomes necessary only if the
and accused denies them . If, on qu.esti.o.ning by foe Court , he admits
the previous convictions, no proof is n~ces.sary.
(b) ask .the Attorney General whether the accused has any
previous convictions recorded against him. (3) Of course, the identity of the accused with the person pre-
viously convicted sho.uld be proved , e.g., by finger-prints . Where
2. If there are 1previous convictions recorded against the a comparison between two finger-.prints is relied on to establish
accused, the Attorney General shall prov,e · such convJctions and the i.dentity .of an accused person with a previous convict ; it
should be strictly pr-oved :
.the accused may contest them .
(a) tha.t the previous pri,nt was made by the hand of the
3·. The Court sha II then : pers.on who suffered the conviction; . .
. ·.. ,
(a) pronounce sentence, exce,pt in the cases provided for in (·b) that the suusequent .print was made by the hand of the
Adkle 126; accused: .
. (.b) order the a,pplication of security measures in the cases (,c) that a finger-print expert has found severa! po.ints of
provi.ded for ·in the Penal Code; agreement, and no points of ,disag'.eement in the two
impressions.
(c) dedde whether to grant any of the benef.its provided for (4) The previous c-onvidions or. t!he identity of the accused can-
in Articles 125 a.nd 127; not be proved by the mere production of a convicti.on slip which
(d) make any other or,der th at may be required. is nothing but the criminal record of the convicts kept by the
authorities. ·
4. The Presi,dent o.f •the Cour,t shall : (5) Paragraph 4 (b): This sub-paragra'pn' ·requires that l~e
(a) rea,d the sentence in the form lai,d down in pa.i;.agraph 3 Pr,esident of the Court shall i.nf.orm the convicted ·person of his
of Article 120; and right to appeal against the judgment. In Criminal Appeal No. 19 of
1968, Adan Hajl Ismail Yonls v. State, the effect of ,not so inform·
(b) in.form the convicte.d •person of ,his ri,ght to appeal ing was discussed. In this case, the a,ppellant filed a petition ask-
against the ju,dgmcnl . ing for leave to appeal out of time . The reasons hC' gave to sup ,
/}or! the petition were:
 - 136
- 137 ·-
;
f.
-
2. Whe-n it is found, during t·he course of the trial, that the
,, r I) Al the lime o(hearlng my a,ppeal, lhe honourable Jutlgt' offence of which the accused 11rny be .found guilty is different from
did not tell me about the conditions of the appeal to the the' -of.fence_ charged, if :
Supreme· Court; and .
(2) I _had no a,dvocate to either advise me or conduct my (a) the ~f.fence of which the accused is cha~ged ~nsists of a
case-ap1peal to the Supreme Court and ha-d lately under- number of acts or omissions; ·and
stood.. .the conditions. of such appeal to the SU:preme
Court».
(b) o~e or ·.mor'e of such acts or, omissions const'itut'e a' iesser .
According to the Supreme Court, the substance of the peti.tion- · of.fence or only an attempt t-o commi.f the offence ·~h~rg 0
er's reasoning ·Is this: «I was i,gnorant of t·lJe law». It ha.s been . ed; and '
repeatedly dedded by the Supreme .Court that ignorance of law
is no defence. But the petitioner has said that the Court .of
Appeal failed to inform him of his right to a,ppeal to the Supreme (c) only such lesser offence or attempt is proved ,
Court. the Court_ may fi°nd the accused guilty .of the lesser off,ence or of
the attempt, even if thest>: were -not included _in ,the charge,.
The questio.n arises, whether the ·failure of the Court or
Appeal to inform the petitioner of his right to appeal constit1,1tes
«reason,s beyohd his confrol» within the meaning of parngraph -·2 3. Except for the case provi,ded for in the · preceding paragr-aiph',
of Article 214 ,to justi-fy an onder for the extension of time-limit. when it is evident that the offence -of which the accused is tci be
There is no doubt that .the combined effecl ' of Articles 123 (4) (,b) found guilty is different from the offence charged, the Court:
c1 nd 230 (1) is · tha,t the Court .of Appeal .is required· to inform
an app_ella.nt of his right of appeal to the Supr~me Court But
before ans,weriIJ:g this question, the Court dis.cussed the provisions (a) if lhe o'ffence falls within its jurisdiction shall:
· of Article 5 of the Penal Code according ' to whi.ch «No one may
allege ignorance of the-,p.enal law as an excuse». After d! s~us - 1 (i) order the Attorney- General to amend the charge; or
sing the implica,ti.ons of this, the Court held t~at ~he prov1s1ons
relating lo inf·om.[ng the convicted person of his nght of appeal (ii) or,der . a fresh hearing to the extent necessary '· to
are merely ,di ~cctory and despite the failure of the Court of _·prevent prejudice to lhe rights of the accused, allow-
Appea I to so adv:se the petitioner, he _is· nonet·hele_s~ presumed. to
know the law and:· hence to comply with t}Je provmons prescnb- ing such accused, whenever he so requests, reason-
ing the sla.tutory time -limit for filing a•ppeal to th~ Sup_rei:ne Cou'."t. able time to prepare his defence;
Consequently, the Court refused to extend the time-I1m1t for fil-
ing appeal. (b) othe rwise, shall proceed as provided for in sub-para-
graph (c) (i) · of pa,ra,grap.h 2 of Article 106.
Article 124
Relationship between the judgment and the charge
I. A Court may find an accused, on the same .set of facts , gu ilt y NOTES
o[ an offence d"ifferent f.rom that contained in the ori~irtal charge,
and aw a r-d a corres.po!1.di·ng . punishment, even thou.gh such punish- ( 1) .Normally, an accused person may be convicte_d of a partiicu-
ment may \)e greater Lhan that applicable to the _offence ori_ginal - !'ar offence only if he was charged with the same. Paragr.aphs I
ly drn rged, and apply security measures, prov.1ded that 1,l ha s .and 2 of thi,s A.r,ticle are exceptions to this rule.
jurisdiction wi.th respect lo the offence of with •the acc~sed . has
bet' !l found guilty. otherwis~. the Court shall ?r-oceed in a-ccor~ (2) Paragr'aph 1: It _will be observed th_a-t the. conviction of an
clcince with the prov isions of sub-para-grnph (c) (1) of paragra.ph - accused of·an offence drfferent from t·hat with which he was charg-
of Article 106. ed must be bJsed on the same set .of facts .
 - !08 - 139 -
ILLUSTRATIONS: 2. The benefit provided ·for in ·t.he pr-eceding paragraph shall
only be exercised if it i,s so requested by the convicted person be;·
. (a) X was found in possess·ion of a radio belonging to Y in fore the Court decides on the .punishment in accordance with
w110se house a theft took place the night befor.e .. X was charged par·agraph 3 of Article 123. ·
with theft contra Article 480 of the · Penal Code. Here, X may
he convicted of receiving contra Article ' 504 of the Penal Code,
,ilthough he was not ,charged with this of.fence. 3. The benefit of conversion shall be automatically revoked if
(b) In the above illu.stration, if it transpires from the evi- the convicted person, within the time-limit set by the Court :
dence that Y was found murdered on the night of the theft, X can-
not be convicted of murder contra Article 434 of the Penaf Code, (a) f.ai!s to pay the fine;
because the two offences are so unc,onnected ·with each other as to I

be based on the same set of facts. (b) fails to fulfil the civil liabilities to an injured person aris- ;
•· ing from the o(fence. ·
i,'
(3) Paragraph 2: Like paragraph I, this paragraph contains
. an exception to the ordinary r~1le that an accused may be con-
t victed of a particular offence only if he was charged with the
~,ame . This paragraph contemplates cases where the offence NOTES
charged consists of several particula.rs, a combihaHo·n of some
. . .
only of which constitutes a lesser offence. The reason for this
exception is that the graver charge gives to the accused noti.ce of (I) This Article gives discretion to a Court to ~onvert a senten-
all the circumstances going to constitu,te the lesser o.ne of which, ce of imprlS-Ot1ment imposed for a crime...cQmmitted with culpa .
he may be convicted. · into a fine according to the rate prescriqed in Article 112 of the
. Penal Code (which is Sh. So. 25/- for one day's imprisonment) .
But the Court can exercise this ,discretion only lf the following
ILLUSTRATION: conditia.ns are the.re~'::-- ·

X is charged with causing grievous hurt to Y contra Article (a) the . sentence of imprisonment imposed is not more than
440 {2) of the Penal Code. It later turns out in, evidence that ,the one year, whether with or without fine ;
i·n:jury caused to Y was a simple o·ne. X may be convicted of caus- (b) the offender has not been convicted before of a crime
ing hurt contra Article 440 ( 1) of the Penal Code. ,committed with cri.mi'nal intent;
( 4) S.imil-arly is the case wit,h the attempt to commit an offen,ce.
An accused charged wUh a su,bstantive offence may be .convicted (c) the convicted person has requested for the conversion of
of an attempt to commit that offence although lie was not charged imprisonment into a fine before the Court decides on the
with committing such attempt. punishment;
(d) the Court feels that circumstances of the offence, the
Article 125 character of the offender and the other factors set out in
Article 110 of the Penal Code warrant the conversion
Fine in place of imprisonment of imprisonment into fine.
I
(2) It will be noted that the a1?'9ve benefit may also be granted
I. When a Court convicts a person for a crime committed with if the person has been convicted of a contravention ·or of a crime
qu{p,a aind imp,o.ses a sentence of imprisonment for not more than wLth culpa. lrt i,s o.nly if he has already been convicted of a crime
one year, whiet,her with or without fine, it may order, i.n accord· committed 'with criminal intent that he cannot come within . the
a!llce. wi,th the .provisions of .paragraphs 3 and 4 of Article 109 of provisions of this Article. A.ccord·ing to Article 24 of the Penal
the Penal Code, an,d bearing in mind the circum~tances provided Code, a crime is with culpa, or. against the intent, \\'.here the event
even if foreseen, is not desired by the offender and occurs as a
for in Articl.e 110 of t,he Penal Code, that the impr.isonment be consequence of negligence, lmprudence, lack of skill or non -obser-
converted into the corresponding fine, in accor.dance with the rate vance of laws, regulations, orders or instructi-0ns. Death caused
of convers,ion \aid down in Article 112 of the Penal Code. · by, negligence (Article 445, Penal Code) ls."an ·example of a crime
with culpa.

-
 - 140 - 141

Article 126 (1) .the offence Is commlllcd by a person of less than 18

or -more than 70 years;
Judicial pardon
(2.) · the maximum p·unishment for the offence is not more than
I. If for offences committed by persons: three years w!.th or without fine; ,
(3) the- Cour.t, tal<ing into account the following, con~iders
·: (a) of less t,han ·rn yearn of age} or . that the offender will not commit another offence:
· (b) of over 70 years of age, (a) the gra:vity of the offence as inferred from :
· t?e law provides a maximum punishment of not more than 3 years (i) the. nature, character, means, bbject, time, place
' either. with or without fine, or a less serious punishment, the Court and any other circumstances of the act;
may, rn accordance with the prov:isions of Article 147 of the Penal (ii) the gravity of the injury or of the danger caus-
Code: ed to the party injured by the offence;
(ii:i) the intensity of .the criminal intent, or the degree
(.i) after finding the convicted pers'on guil~y. inflict no
of culpa;
:punishment; and .
(b) the offender's criminal capacity as inferred from:
(H) declare that the offence ·shall be extinguished by the
(i) the motive to commit the of.fence and the
grant of a judicial pardon,
. . . ,.. .' ·-.-. -·
~ •character' of the offender;
'. when, having regard to the circumstances faid .dow.n in Ar.tide 110 (ii) the criminal recor,d of th~ offender and, in
general, the conduct and life of the .offender
.. • 1 of ~~e Penal Code; .it considers that such person- will ·not commit ,prior to the offence:
· . :,. : any ;furtper o.ff ences. ·
(iii) the conduct at the time of, or subsequent to, the
. 2. A. judicfalyardori cannot be given more than once. offence:
(iv) the individual, domestic and social conditions
I •
NOTES of Life of the offender.
: ·)
(3) The effect of a judicial pardon is that it extinguishes not
. \ ( 1) ; The wording of. this Article is similar .to that of Article 147 orily the punishment but also the offence, i.e., as if the offender
. of th,e Pen.al Co(le, which reads : had not committed the offence.
! j'' .' . . ·.

«Article 147 (4) With regard to young offenders, it may be relevant to refer
to the Law on Juvenile Courts and Reformatories (Law No. 13 of
Judicial pardon for persons under 18 or over 7.0 years . of age 8 March, 1970), which gives a Juvenile Court wider powers to
: 1; · Wher~, i~ ·
the: case of :a,n · oifence: committed ..by ·a· person . deal with such offenders .
.under 18. or. over 7.0 years of age, the· applicable punishment
is . imprisonment for a maximum term of not ·more· than three Article 127
years or a pec:uniary punishment, or both, the Judge ma¥ ab- Suspended sentence
stain from entering conviction and · grant . judicial pardon
where, having regard tci the circumstances ,referred to in
.. ·Article 110, ..he considers the offender w.iil not .commit any . L Jn P.assing sentence :
' further offence. · A judkial par.don :Shall. . extinguish the .
.i crime. ,· · (a) to a term .of .imprisonment not ,ex,ceeding 6 months; or
.l
,;,••.,. 1 ~ - A judicial pardon maY not be granted more than once». ·(b) to a fine which, with or without imprisonment, and on
,I ·;, I . ·. .. ·- , ·, . ' . ' . .
:\~. !(2) :· }he._ effect of tli~?e..cprovisions· is to enable• the Court' t~· par- the basis of the conversion rate provided for In Article
idon persons below 18 and above .70 years for the ·commission of 112 of the Penal Code, would be equivalent to a term
·minor '. offences .. However, the following conditions must ·be ful· of Imprisonment not ·exceeding 6 months,
:filled :before judicial pardon may be granted:- ·

. '
 - 142 - - 143 -

against an accused who is not a recidivist, a Court may order in (a) that the offender does not within five .years from th~
accordance with Article 150 of the Penal Code, that'the execution sentence, commit a crime or contravention of the same.
nafore as that for whi.ch he was convicted; :
of ·Such sentence be sus•pended for a period of 5 years, when, hav-
. ing regar.d to the prov.isions of Article 110 of the Penal Code, it (b) tha.t the offender; within the time p;escribed by the;i
oonsi,ders that such person will not commit another offence. Judge, fulfils any civil obligation to . make restitu-:
Hon or pay compensation to the paJty injured. :
. . .
2. A suspended sentence shall be revoked automa.tically if the 3. Where the above conditions are complied with, .the ptmish-\
convided person : ment shall be extinguished». · ., ,
(a) within 5 years of the convidion commits: (2) The following conditions must be fulfill.ed .before th~ Court! .
may order suspension of a sentence:- ·
(.i) a crime; or (a) the offender is not a recidivist as defined in Article
61 ( 1) of the Penal Code, i.e., a p'erson who, after con- .
(i:i) a contravention of the same kind as that for whlch · viction for an offence commits another offence; . ·. 1
'
he .was convicted; or . •· ·.
(b) the sentence imposed is not mcfre' tnan 6 months impri- : .. ..,,.
,

(b) fails to fulfil within the time-limit fixed by the Court -· sonment, with or without fine, and the fine is converti-
· any of the civil liabilities towards the injured person ble into imprisonment for the same period in accordance ,
arising from the offence. with the conversion rate under Article 112 of the Penal •
Code;
(c)the Court after takng into account the circumstances re- •
3. The punishment shall be extinguished lf, within the period ferred to in Article 110 of the Pena I Code considers that
referred to in the preceding paragraph, no cause for revocation of the offender will not coi:nmit another offence·.
the suspended se.ntence arises. (3) Paragraph 2: Paragraph · I of this ArHcle prescribes the ·
conditons which must be fulfilled before a Court may order a sen- •
tence to be suspended. T:h-is .paragraph specifies the circumstan- , ; ... ~~- ~ ., -
NOTES . ces which would automatically revoke the .suspenskm of senten- ;
ce. These are : .. . '. · ·· · ·.
( 1) The wording of this Article Is similar to that of Article 150 . (a) the comm1ssion by the convicted ·person of a crime or '
of the Penal Cod.e, which reads : contravention of the same nature as the one he has been ·
convicted of within 5 year·s from the time of the • con- i
vidion. Offences· of the . same . nature , according to ,
«Article 150 Article 63 of the · Penal Code, are .those• which entail a :
Conditional suspended sentence violation of. the same provisions. of ·law or :although , . :,:
·:_.· .
governed by different provisions, :: nevertheless, . owing ! .
1. Where the offender is not a .recidivist and the Judge, to the nature of the :;•acts constituting them or of the i
taking into account the circumstances referred tci in Article motives thereof, present -commori fundamental charac-
teristics; · · ._, ; · !
110, has reason to believe that the offender will maintain a
good conduct in the future, he shall, when pronouncing a . (b) the'failure ofth.e offender to fu.lfil within . the .time-:limit :
sentence of conviction to imprisonment for a period not ex- · fixed by the Court' any . civi.J liabilities arising from the 1
ceeding six months, or to a pecuni·ary punishment, or both, · offence (such as payment of co[!!_pensatlon for injuries :
and the pecuniary punishment is convertible into imprison- or restoration of stolen· property). - -
ment for the same period, order that the execution of the
punishment be suspended . (4) Paragraph 3: If the order of suspension of sentence Is not
revoked·, then the punishment Imposed shall be extinguished. It
2. Th·c suspension of lhc punishment shall be subject to the will be noted that only the punishment is extlngu!she1 and not the
followin,g conditions :- offence as is the case with judicial pardon under Article 126.
 - 144 - 145 -
Article 128 · (-b) Ar.tlcle 314: Disturbance of religious functions.
Rules common to judicial pardon and suspended sentence ·(,c) ·Ar.tide 315: Crimes against forms of worship permitted
- • . .,_ ___ _ ,in the State.
When a judicial pardon has been granted in accordance with
Article 126, or suspended sentence has been approved i:n accor,d- (d) Article 4 3 . 9 . ~ s s a u l t - - - - - - - - - - -- - - - - -- -
1 - -- --a-·rrc·e --with-krticlei-2r,-tbeCourt may order that the <;:onvicte<l'
person : (e) Artide 440,para 1: Hurt, where the act results in an ill-
ness or incapacity which prevents the injured person
(a) take up _some fixed employment;. from attending to his ordinary occupation for a peri0:d
not ex~eeding ten days.
(b) underg-o any necessary medical or psychiatric freatment;
• l • • • • • • • • '

(c) -refrai~ )~om -· fr_equen.ting · certain , places and consorting (f) Ar.tide 451: Insult.
wH~ ·certain pers.o.ns; · -
· (g) Artkle 470: Violation of the privacy of the home.
( d) possess or carry no firearms or other danger'ous weapon. , (h) Articles 480 and 48 I: Theft Where the amount
(i) Article 496: Cheating or the value of · the
Chapter IV-A -(J") proptrty involved
Article 502: Misappropriation does not exceed
SUMMARY -TRIALS
-(k) Article 504: Receiving Sh. So. 200.
(I) Offences under the Penal Code or any other law not
l '
I •'
Article 128-A punfshable with death o.r imprisonment for a te~m. ex-
-~
',
,... ceedig· 6· months. ' ,,,,;;
i_
:-; Who may try ·cases .summarily
(m) Abetn:ient of and attempt to commit any ·of ·foregoing
offences.
. Notwithstanding anything contained in · this Code or any
other law, all J~d._g!!_s of the Regional Courts and such of the
Judges of th:e Di-strict Courts as are a:pproved by the P.resideht of
Article 128-C
·:the Supreme ' Court on the recommendation -of the President of the
- , c9mpetent Regiorial Court, shal !have the power to try summarily . Procedure In summary trials
· th~ offences .set 'o ut in Article. 12&-B i-n- the manner s-pecified in
: · · ~rticie 128-c,· In a,ddition. to their normal ·duties. 1. . Procedure for the trial of cases summarily shall be the same
I 1. . . .. , .
.~
as for : other cases · under the Code except that the Judge fa ·not .~·
i required to make a detailed note of the evidence but shall enter ·
Article 128-B in .the case file the following parfi.culars :-
Offences . which · may be tried summarily
(a) the serial numeber;
.i ' Notwiths_tanding anything con-tained .in this Code, the follow- ;'(b) ·.the date ·of' the commission of the offence;
ing offences under the Penal Code may be.tried summarily .:-
(c) .the date .of. the complaint;
.._.:. i (a) Article 3'13: Bringing th~ rel!gion of. the State- into (d) the · name of the complainant (if any);
confempt. (e) the name of the accused;
 - 146 - - 147 -

(f) the offence complained of arid the offence (if any) prov- Chapter IV-8
ed; and in cases coming under items (h), (i), (j) and TRIAL IN ABSENCE OF ACCUSED
(k) ·o.f Article 128-B, the value of the property in respect
of which the offence is committed;
fi.r.ticle 128-D
(g) the plea of the accused; Issue of proclamation in certain case·s
(h) the finding, and, in the case of a conviction, a brief sta- I: ... Where ~. warrant of arrest has been issued under the pro-
tement of the reasons thereof; v1.,1ons of this Co.de and it is not possible to serve such warrnnt on
t~e ac-cuse.d because ·h~ has absconded o.r .is conicea,Hng himself or
(i) the sentence or other final order; \\.here an offence pu.~11,sh~ble un.der ArtLcle 7 or 8 of the Penal
(j) the date on which the proceedi.ngs terminate. ~ode ~as been commuttd ma.ny .place ou:tsi,de the .territory of the
omal1. St~.te, the co.~petent Court may, at ,the · request of the i.
2. Where in the course of a summary trial it appears to the ~tto.rney Gener.al or his represe~tativ,e, issue a proclamation c:all-
· Judge that the ca~e is one which i,s of a oharader which renders ing iron the accused to a,ppear before H. · ·
it undesi,rable th.alit should be tried summarily, the Judge, if he
is competent to'i.:try, the case lio.n-summarily, shall recall any wit- 2. A ny sue h proclama1tfon shal.J -contain the follow 'n·g
lars :- 1 par, t'icu- · . .:..: .i
nesses who may,".· have been examined and to proceed to .re-hear
the case in the, manner provided by this Code. If on the other
hand, he is not competent to try the case non-summarily, he shall (a) the name and the personal deta.ils of the aocused·
direct the rrosecutor to take the case before the competent Court. (b) the date, place ·a.nd the nature oUh.e ,.q,ffence alle~ed to
have been committe.d; ·
3. · No sentence of imprisonmeri.t exceeding 3 months or of fine
exceeding Sh. So . 500./- shall be passed in the case of .any con- (c) the da,te, time and .the pla<:e where the a.ccused is requir-
viction under this Chapter. · ed to a,ppear :

4. Notwithstanding anythirig contained in this Code, there shall Provided t.hat the specified time shall not be less
. be no appeal · by a convicted person i.n any case tried ·summarily than 30 days fr.cm the date of the p,ublication of such
where the sentence imposed is one of fine only. proclamation.

(Chapter IV-A - Artides 128A .to 128C inserted by Article 8

of Law No. 84 of 12.12.1972) , Article 128-E
Publication ·of pr~clamation
NOTES
I. The proclama,tfon referred to In .f.he last preced-ing Article
This new Chapter IV-A consisting of Artic.les 128-A t9 128-C shall be published as follows:- · ·
was inserted by Article 8 of Law No. 84 of 12 December, 1972.
This would provide mac\:linery for summary trial .of certa.in minor (a) it sha,11 be broa,dcast at least twi•ce on the Nati,onal Radio
offences listed in Article 128-B. The idea ls to dispense with the system and also · p.ublished twice · in a local newspaper
recording o! detailed notes o! evidence ar.1d thus. expedite the dis- in successive issues;
posal of criminal cases.
 ... , ..::in.
148 -
- 149 -
(b) H shall be a.ff.ixe1d: to the Court,house and also to some
conspicuous part of the house in· which the· ,accused nor- cr.iminal ·appeal by law commencing form the date ci[ the pub-
mal!~ res·i,des or was last·k,nown .t~ res·ide. licaUon of the pr-0clamation of sentence. If ,he fa-ils to appear
and appeal within .the ·said time-limits then his right of appeal
2_. A statemeI1Jt in wri,Ung by the Court issuing the proclama- shal.J,lapse,
tion _t? the effect that the proclamation was duly published on a
. ~p.ec1fie~ day sh_a._l_l be conclu~·ive. evi,dence that ,the requirements of 2. · Any ·sentence .imposed against any person tried in his ab-
.his Ar.ticle as regards publicahon have been compli.eq with. sence shal,l rema-in in forc,e during .s,u,c,h absence a-nod may be e"'e-
cuted agains,t him at any time that he may be found within the
I erritory of the State.
Ar.ticle 128-F
....Trial of
:
proclaimed
. person
.
· in absence 3. Nothing contained i.n ,lhis Cha1pter s.hall affect the right of
. . a?~ ·person to have a case considered 'for revision under the_ pro ·
.·or
f In cases of.fences committed . .in .the territory of the Somali v1s1-0ns of Cha,pter IV of Part I of BOOK. FOUR of this Code.
Stat.e. or ·.corrur1itted by a So.maJ.i citizen agai,nStt a.nother Somali
citizen in any P,lace -Outside' th~ · territory of .the Somali State,. if Ariticle 128-H
t~e proclaimed . pers.on fails to a•p.pear at the specified place and Attachment of property of proclaimed person
· ttme then .; notwithstandinig the provisiions to the contrary in· this
Code or lll')Y other law, he may be lried in his absence. · I. A Court issuin,g a •proclaimatiion under Article 128-D may, at
2. · At the..request of the. prosecutor, the: Court which issued the the same .time or ,a,t any ,subsequent ,time, , 011d·er th.e ·attach.merit of
proclamafion' may fix a trial date at any time after the expiry of any property·b-elongi,ng ·to any prodaimed per,son within the li{J1its
the period . set out in the proclamation and on that.,dale may pro- of such ·court's jurisdktion, or, j.f any such property is situated
ceed to hold the trial and,· after hearing evidence, :deliver judgmc;it · out:,ide the said Court's juri,sdic\.ion, it may issue an attachment
and on conyiction impose · sentence · acco:·ding to law. warrant·an:d send .it .to the Court of Appeal with in whose juris,dic-
tion- such propert,y is .situ·ated .and request such Court,of Apipeal
3. Such. trial shall be concluded in accordance with lhe pro- to · a,p.prove of its execution and such Court of Aippeal is hereby
visions of this Code. In the case of .the absence of the accused the empowered to ,do so .
;
. provisions o·t th·rs Code shall be construed so as to per,rn:it, .of ~uch
. l ·.. tr:al in his absence . 2. If the prop~~ty attached is livestock or subject to speedy or
4. In each case cWtrial in the ahsence of the accused, the Court · natural decay, the Court ma y, if it thinks expedient to do so, or,der
; : shall enter a plea of «Not Guilty» on behalf of the a,bsent 2ceu::.~:I. the sale the~eof and in such case the proceeds o,f the sale sha,11
! abide the order of the Co,urt.
./:\ , . !
·1 3. If the proclaimed person does not appe'ar V:.ithin .the time
o'·/.j . ,
/(~t ' '. I Article 128-G . fixed by th~ . proclamation, then any pr,q.perty attached tinder this
. J Proclamation of sentence At·Hcle shall be at the di~posal of the State which may use it a1& ·
part o.f the general funds of the S:t.afo or wholly or partially to
.. L · If. the: ·a~used who . is tr:ied in hiis absence under the last ,compensate any person or persons injured in any way by the
i · . preceding Article is convicted a.n.d $entenced such sentence sha 11 offence for which the accuse,d ·had been procla.imed . Where such
·:be proclaimed in the manner set otii in Ar.tide 12.S-E. Any such compensation is to be paid the Secretary of State for Interior shall
per~on may appear and appeal within the time-limits fixed for dedde the amount of such compensation and to whom it shall
be paya,ble. I
..
. .. · -ov..•
'
•
,II
 150 -
- 151 -
4. If within one year from the date of attachment of the proper. 2. If:
ty any person whose property is or has been at the d·ii&posal of
the State appears voluntari.Jy or is a,pprehended and brou,ght be- (a) the punishment provi;de-d by law for the offence commit ·
fore the Court by whose or.der the property was a,hta.ched , and ted during ,the hearing is not in excess of the jurisdiction .
proves to the Court that he did not a•bscond or conceal himself ·-; of t,he Court; and '
for t/Je purpose of avoiding execuHon of .the warrant issued
against him and a.Iso that he ha,d no knowlecJ.ge of such proclama- (b) such Court is the Penal S,ection of the District Court or
a Section of a Regional Court,
~ion, then the Court' may order the retur.n of such property o.r of
its value to him, less -the cost·s inourred in connection with the
attachment of the property and all subsequent _proceed,i:ngs. · the Attor.ney General .sha,11 immedi,ately frame · a ·charge and . pro · !
duce it to the Court. · The Courl, having suspended the trial in ·
progres.s , or immediately after prono,unci:ng judgment in that _trial.
(Chapter IV-B - Arti,cles 128-D .to 128-H inserted by Ar.Hele shall. begin the hearing of t,he new offence. · ·
8 of Law No. 84 of
I•
12.12.1972).

Otherwis~. the Attorney General shall i~mediately _pr oc~~d in

N OT ·E S a,ccordarice with the provisions. of sub-paragraph · (a) of· par<1gh 1pil
·, of Article 70. · ·· · · ' ·
This new Cha!pfor IV-B C'Onsist.ing of Ar:Ucles 128-D to 128-H
was inserted by Ar:ticle 8 of Law No. 84 o.f 12 December, 1972.
J.t would i·ntrod,woe .the concept of .tri:al in absentia in certai,n cir- Chapter VI ....... -
cumstances. Experience has shown tha.t some of ,the very serious
offences remain unpun,ished because of the ,disa1ppearance of the
1 DECISION OF THE REQUEST OF AH INJURED PARTY
accused a.n·d thi·s leads to reta,IiaHon and consequent disturbance
of peace. Of course, provision ha,s been ma.de for the necessary
f.ormal.it.ies regar,din,g the issuing and publication of proclamation Article 130
· by the Court before a ,bria.I in absentia couJd ,be heJ.d. Admissibility of a claim by the injured party

Chapter V
I. When the accused ·person has been found guiHy in accordance
with Article . 123, the Court, if ,th'e injured par,ty has applied to it
PROCEDURE FOR CRIMES COMMITTED DURING TRIAL for civil da:ma-ges a,gainst the accused in accor·dance wi.th p'ara- . :M..:. •.

graphs 2 and 3 of Article 14, shall deci1de u'Pon such claim, unless
Article 129 it declares the claim to be ina.dmissi1ble in accordance with , the
following parngra1ph.
Cases in which the Court shall proceed immediately
/, ,'...'
·I
2. A claim for civil damages from a.n injured party shall be .: .· .·
~
I. When, dur.in,g a hear.ing, a p-ers,on co.mmUs an offence i;n res- declared .ina.dmiss,i,ble i.f :
pect o.f w,h,ich proceedings are initiated by the State a.nd for which
the law · prcivi,des a punishment of impr,iso.nment, or a more se- (a) the claim:
rious penalty, the Presi.dent of the Count shall : (i) was not ma.de in accordance w,ith the requirement
o.f paragraph 3 of Article 14;
(a) cause a .statement of the offence to be r-e<:orded ;
(b) order t.he immediate arrest of the offender. (ii) was made by a person not legally entitled to d0
so in a•ccordance with civil law;
 --· l 53 _.,.
-- 152
Chapter VI-A
(iii) wa,s made aga.inst someone inca,pable of being sued DISPOSAL OF PROPERTY
in a civil proceeding;
Sect.io.n I
(b) the injured party: DISPOSAL OF MOVABLE PROPERTY

(i) ·has started proceedings in a -Civil Court fat the Article 131-A
recovery of damages deriving from the. offence; Order for custody and disposal of' abandoned or
selied movable property
(ii) has effected a settlement ' wHh the, accused with
·1. Where an.y movable proper.\y foun1d a.bandone<l in· circumstan-
respect fo the damages;
ces which crea,te suspicion of the comini.ssi,on of an.y offence or
seized under this Code or any other law, is produced .before a
(c) the amo.unt of da:ma,ges ,claimed is in excess of .the maxi- Court, it may, subject to the provisions of any other law, maike
mum amount which may be awarded by the Civil ·Section such order as it thinks fit respeding the delivery of such property
lo the pers::>n entite.d to the possession thereof or, H such person
of \.he Court in which the case is bei'ng tried;
cannot' be ascertained, respecting the custody and ,production of
such. property.
(cl) · the applicaUon cannot be -expeditiously heard due to the
necessity of hearing' a substantial amount of fresh evi· 2. If the per,son so en:ti:tled is known, the Court rriay order the
pr.operty to be delivere.d to him on such condi,tions (H any) as '
··-, dence, •0~ for any other reason. ·
t,he Court thiniks fit. If such person is unknown, the Court may ·''~

In such cases the Court shall daclare the claim for damage~
detain it an,d shall, in such case, .issue a proclama:tion specifyt.ng
the articles of which. such property consists, and r.equidn.g any iI
. to be inadmissible and shall advise the injured party.Jbat the · person who may have a claim thereto appear before it a.nd estab, l
c!airi).may. be broug,ht in a Civil Court. - +ish his claim within six months from the date' of such -procla· \
mation. l
I
.I
3. ,If no pe~son· wi:thin such peri.od· ..es:ta.b'!ishes clai.in to such
Article I 3 I pro-perly, and if the per-son in whose pos,session such property was
Court decisions regarding claims for damages found is unable to show that it was legally acquired l:iy h.im, such
property shall be at the di,s,posal of the Stat.e.

l. The Court, havin,g consi,dere,d .the evidence oi the· injured 4. If the person entii,tled to the possession of such property is l'
I
: party and the ~.cctise.d concerning t,he claim for duma,ges, shall unknown or absent a,nd the pro,per.ty i·s livestoc-k or is subject to \
th.en ' proceed fo deliver judgment in the matter. speedy or natura.l decay, the Court may at any Ume clir.ect It to .t
be sold by public auction; and the provisi·ons of . the. preceding I:

i. -/ ~cept- a~ .othe~~~ise provided in this Code, the provisions of p'aragraphs o·f this Artide shall, as nearly a·s may be practicable;
a,pply to .the net proceeds of such sale.
: civil :, law, dncluding those pertaining to execution, ,shall be ob·
• served in this matter insofar as a,pplicable.
 - 154 -
- 155
Article. 131 -B · - ·- • • 1...

possession oi under foe control of any party, . but also any '
Order for custody and disposal of movable property property into or for which the same may have been converted or :
pending trial exchanged, and anything acquired by such conversion or ex- ;
change, whether immediately or otherwise.
Where any mo,vable ,property regarding which an of·fence
appears to have been committed, or whi·ch appea,rs to have been
used for the commission of an offence, is produced before a ' Court Article 131-D
during a trial, the Court may, subject to the provisions of any Destruction of obscene, .de.famatory or : other. matter
other Jaw, ma,ke such order as it thi,niks ,fit for the ,proper custody
• ~,A;;,., - .•
of such property pending the ,conclusion or' the trial. If the The Court may, on conviction, order the ·· destruction of all ;
property is livestock or is subject to speedy or natural decay the the copies of any absence or defamatory matter; or of any adul- I
Court may, a,fter recording such eviden,ce ~s it thinks necessary, terated, simulat'ed or noxious food, drink or · other article or. any ,
order it to be sold by public auction . spoiled or defective drugs or medicinal preparations; or -narcotics ,!
in ·respect of which the conviction was had and which are in the
custody of the Court.
Ar.Hele J.31-C
Orde1· tor disposal of movable property Article 131-E
at the conclusion of trial Payment . to innoteht · purchaser of money found on ·accused
I. Subject to the provi•sions oi Article 183 of the Pena'! Code or
of any other' law, n Court may a,t the conclus,i,o,n o.f a trial before . Where any person is convicted of an ~ff~n~e 'which includes,
. i_t ma-ke such order as it thinks fit for the disposal of any mova- or amounts to, theft or recei'ving stolen property, . and it is proved
ble property produced before it or in its custody or regard·lng that any other person has bought the stolen.:~property fro~ . him
whic·h an offence ap,pears to have been committed or which has · without knowledge, or without having . reason to believe that the
been used for the commission of an offence. same. was stolen, an·d that any money has on his arrest been
taken ·ciut of the possession of the convicte.d person the Court may,
·2: · When a higher Cou1 t ma·kes such or,der · and cannot through on the application of such purchas~r and on the restitution of the
its own off:cers conveniently deliver the property to the person st~len p_roperty to the person entitled to the . possession thereof,
entitled thereto such Court may direct !-hat the order be ,carrie.d order that out of such · money a sum not exceeding the price paid
into effect by a lower Court.
by such purchaser be delivered to him.
3. . Where an order is made under this Article in a case in which
.an a.p.peal l·ies, such order shall not (except where the property is Section II
livestock or is subject to speedy or natural d~ay) be canied out
RESTORATION OF IMMOVABLE PROPER.TY
until the period allowed for presenting such a.ppeal has passed or
if such appeal is prese,nted within such perio.d, until such appeal
has been disposed of. Article 131-F
Power to restore possession of immovable property
4. In this Article, the term «,property» includes, in the case of
property regarding which an offence a,ppears to have been . com- 1. Where a person is convicted of an offence attended by crimi-
mitted, not only · such property as has been origlnalJy in · the . nal force nnd it appears .to the . Court tha.t ·: by such. force ;any
person has been clisposse$sed .or any immovable propcdy1: the
. ., - :·.155 - . -· 157 -
.Court may, if it thinks 'fit, order such ;person· to be resto.red ta the · (f) objections, requests and applications made by the par-
possession of the same. ties;
2. No such order shall prejudice any right or 1.nterest l.n . such (g) a descrlpUon .of exhibi\is laid before ,the Court;
immovable property which · any person may be .able to establish
in a civil suit. (h) ·,a record ·o.f ·statements made by t~e accused;
(i) ia record of statements made ·by- the witnesses; ·
. (Chapter VI-A - Articles 131-A to l3I 7F inserted by. Article ' ' '

9 of Law No. 84 of 12.12.1972). · · (j) . a record of anything else which may be specially pres-
cribed by law, or anything which the President of the
Court, on application by one of the parties or on his
' NOTES own moti-on, orders to be i.ncluded.
This new Chapter VI -A ,consisting of Articles J,31,A to . 131-F 2. The record of the hearing, unless the President of the Court
was inserted .by Article 9 of Law N.o. 84 of 12 December 1972. H
mak~s detai.led provisions · regarding the dfaposal of pr~perty re- makes it personally, shall be made by a Court Registrar, or by a
garding which o.ffences appear to have been committed . . Police Officer so or,dered by the Pres i.dent of the Court. If the
record was taken· down in shorthand , it shall he trans,posed by
· Chapter .VII the ~tenographer who · recorded it .not later than the day· follow-
. .!,. · : FINAL PROVISIONS
ing the compilation of the stenographic record.

Article 132 3. . Unless. the ,President of the Court orders that testimony be
;. . ..... Rei;ord oi he~rings recorded verbatim, i.t shall be recorded in . 111arraUve for.m and
be divided i~to:
·.,
L The . President of a Court · shall arrange for the · preparation . (a) examination:
: of a complete record · of every hearing, if possible .by · means
. · of a stenographer. Such recor.d shall conta,in: .(b) 'cross-examination;
(a) ,the place, the year, the month, the day in which ·the hear- (c) re-examination,
ing has taken place, · and the time of . the opening .and
dosing of the hearin,g; reference to .any sµspens:ion of.the showing the beginning and the en:d of · each of these ,three parts. ·
heari.ng and the time at which i,t was. resumed;
4. Except · as ·otherwise provided by law, the recording of t,he
(b) the names of the members of the Court;
evi,dence shall take pLace i.n the presence of the a.ccused.
'(,c) personal details of the .accused, and any other informa -
tion that may- identify him; personal <let.ails of the in- 5. After a witness's evidence ha·s been so recorded, the record
jured ,party; the name of the representative of the Attor- shall be read, in the presence of the accused, to the person who
ney General and the names of all other representatives gave ·the evi·dence, and, H necessary, it shall be 'Corrected.
" and Counsel;
6. After a witness's evidence has been recorded, the President
. :!' :. . ,· :·: -
. (d) .personal details o.f witnesses and i.nterpreters, and a . of the Coifrt may ·or,der the inclusion in ·the record of ·any rema·rks
·,·· ··
' ' ' reference to their ' taking the oath; which he deems necessary, concer.ning the behaviour of the wit-
(e) orders and decisio.ns of the .Court · and the ."grounds n,ess while he was ·. giving evidence and concern ing the ' correction
thereof; made in accordance with the preced ing paragraph. ·
.·;
•
.·,
 - lb~ - 159
N O T. E S 2. A complete copy of the Court case file shall be given to tlie
accused up,on payment of the costs a.nd fees fixed by decree of .the
. Paragraph 4: It is one of the fundamental principles of the Secretary of State for Justice and Religion, · provided that the
administration of criminal Justice, \\'hich is universally acknow- trial or the higher Court may order that a complete copy of the
ledged, that in a criminal trial the Court should not proceed ex-
par~e. again.st an accused perso,n. An exception to this principle Court case file be given to the accused without' payment if the
env1sa~ed in the words «Except as otherwise provided by law» Court considers that such may be necessary for ar. appeal.
appearing at the commencement of this paragraph may now be .-.
a reference to the new provisions for triul in absentia contained in ·
Article 128-F. NOTES

Under this Article, an accused person is entitled to obtain a

Article 133 oopy of the judgment free· of cost but he shall have to pay for \h~
costs and lees if· he requires a complete copy of the Court ca$e file.
Court case file There does· not appear to be any decree of the Secretary of Stat~
for Justice an.d Religion under this Article fixing : stich costs and
. In every proceeding, the Registrar shall complete a Court fees but the following fees and ,charges are payable:'- .
case file containing the original of the following records arrang-
ed in chronological order:- · . (a) 60 cents per · page under the Fiscal Rules .on .Ju<iicia;l
Proceedings (Legislative Decree No . I of 23 M.arch :
(a) every warrant, order, judgment or any other measure 1956); - "-- ·. ·~
issued. with respect to the accused, other parties, gua-
rantors and wi.tnesses; (b) Sh . So. 5/- per sheet of stamp paper (carta bollata)\
unper Article 6 (3) (d) of the Stamp Tax Law
(b) the charge and any amendments ma de to . it; (Legislative Decree No. 6 of 7 December, 1966).
·(c) the record .of tife hearings;
(d) the record of all acljournn1ents, showi;g the durati0!.1 and
the reasons thereof; ·
(e) a note that the accused was informed of his right to
appeal;
(f) a record of the Court's decision regarding any claim for
damages made by the injured party; ·
(g) any statement of intention to appeal and the grbunds
thereof.

Article 134
Copies of the judgment and of the Court case file·

.l, On the application of the accused, a copy of the judgment

shall be given to him without clclny and free of cost. ~
•
 ·· -·.161 --
:-BOOK TH:REE
EVIDENCE
. PART I

I ,
. ,.REL~VANCY OF.FACTS

Chapfer I
. . ,RnEv ANCY ' :OF FACTS ,IN 'GENERAL

. Artcle ..135
Facts fi1_Issue. and relevant facts
1. Evidence may be given in any criminal proceedings of the
.existence or, non-existence :
"' (a) of every fact in issue; and
,' ,::, ...
~,.. .. i"·,· (b) of such o.ther. facts . as are ,.declared ,by, l.aw. ·to be rele-
vant, and of no others. ·
2. . For. the . ptir.poses. of..this Code, .. unless .the. context.lnrlicates
.otherwise :
.(a)' .the term:.«-facbii1. .i:~sue» shall..mean.any..fact 'f.r.om .,which,
either by Ltself or in .,connedion ,with· ..other :,facts,. :the
existence o.r non-existence, nature or extent oi any fact
· asserted or denied,.. necessarily. follows;
~.:
.,. . . • I
i (b) the . term .«relevant fact» shall . include. evf!,ry' fact .which .
.. may.,be. proved.Jn the trial. · ·

·.,
I NOTES
•:-
·...,.

'( l) . ., ,This. Article:-prescr.ibes what . evidence. is,.. a,drni•ssible Jn .cri ~

minal :pr-0ceedings . .' .Such' evidence consists: of ..the . facts ..in .issue .
and ..other· .relevanL.facts . . Now, what ., is. ,meant..by. .a...«fact»,
:.-.. «fact in' issue» and ~<relevant . fact»? . .
i, ,. (2) . The term . «fa.et» ls not d~flned in the Code. However, it
means: . .
:, (a) anything·,·st.ate of .things or· relation,"of::th!_ngs capable
•-.v . . -.
of being perceived .by the· senses;
 ·- ..• . -
- 162 - - 163 -
Article 136
(b) any mental condition of which any person is con-
scious. Relevancy of facts forming part of the same event

ILLUSTRATIONS: Facts which, though not in issue, are so connected wHh a

fact in i-ssue as to form pad of the ·same event, · are relevant,
(i) That a man heard or saw something, is a fact. whether they occurred a,t the same Hme and place or a.t different
(i-i)That a man has a certain intention, is a fact . times and pla,ces.

. (3) The term ·«fact in issue» is defined in paragra'ph 2 of this

Article. It mea.ns the principal matter which is in dispute or
which forms the subject of in vestigation. In criminal cases, the NOTES
charge constitutes and includes the facts in· issue.

· The statement .of .Jaw i.n this Ar.Hele is usually known as the
ILLUSTRATION: · rule. of res gestae, the essence of. .whioh is Uiat · the . facts which
though •not :in issue are so ·connected wi1th the .fact in issue , as fo
. X is charged with Y's murder by beating him with a «budh». . form part ·of the same event and thereby 'become relevant. Note .
At his trial, the following are facts in issue:- (4) · under Ar.ticle 135 a:nd the. illustrati<m thereto explain thi's . .~.';.~-
(a) X's beating Y with the «budh»; rule. Another illustra,Hon may 'be given as under : '
(b) X's causing Y's death by such beating; . ·;_ ··
X files a complaint 'against Y for defamation contained in a
(c) X's intention to cause Y's death. letter forming part of a ·corres,pondence. Letters between X and
Y relating Jo the subject out of which the d~fatnation arose, an'ct
(4) The term «relevant fact », accord ing to paragraph 2 of this · for.ming :part of the correspondence in which it is contained, are
Article, includes facts whi ch mc1 y be proved in the trial. These · ~elevant facts, though they oo not contain the defamation Hself
are the collateral facts which a re so · inseparably connected with and !·hough they were written at different times a,nd places.
the facts in issue that the y indirectly and presumptively ·tend to
prove or disprove any fact in issue.

ILLUSTRATION: Article 137

Facts which are the occasion, cause or effect of facts In issue
X is charged with Y's murder by beating him with a «budh».
Whatever was said or done by X or Y or the by-standers at the Fads which : ·
o:;.,w,..., • .••

beating, or so shortly before or after it as to form part of the

same event, is a relevant fact. ·
{a) are the occasi,on, cause or effect, immediate or otherwise,
(5) It will be noted that wha.t !his. Article .prescri~es is w~at of relevant facts, or facts in issue; or ·
evidence may be given in any criminal proceedings . 1 he. ques~1on
of the weight to be ·attached to the ·evidence when admitted ·is a (b) constitute the state of things under which they hap- ,
different thing·. Under Article 202, the Court shall deter~ine the pened; or
weight to be given to the evidence admitted. ·

(6) It will also be note~ that_ only. evidence of fa~ts in issue and :(c) afforded an o:p.p,or.tunity for their occurrence or tran-
saction,
rclevaiit facts may be given 1n cr1111lnal proceedings antj of no .,
others. Even · if an accus·ed has not objected to such other facts, are relevant.
il ls lhe duty of the C~url lo disallow them. .

. ,.'
 - 164· -
165 -
NOTES
(c) any stn,lemenl mn,de l-0 or In lhe presence or hearing
I l) Like the . preceding Articfe, this Arti.cle also is a,n example of the person whose conduct is made relevant by this
of what other facts are relevant. It makes them releva·nt a·s :
Artide, if such statement ha•s affected the con.dud in
,(a) being. th~ oocasi.on, caus~ -0r effect of relevan.t facts or question.
fads m 1ssu.e:
(b) ·corystituting the . sta.te of things under which they ha.p-
pened; · NOTES
(c) af fording··.a.n- opportunity f.or their occurrence.
( 1) Like Articles 136 and· 137, this Article also is an example
(2) The above may be explained by th~ following·illustrations:-.· · of what · other facts are relevant. It makes them . relevant ais :
(a) the question is, whet.her X robbed Y. The facts ,that
shortly ~efore. the robbery, Y went out w.ith. money and (a) motive or preparaf.iion;
show_ed 1t to X, are relevant . t-0 prove occa,sfon or op- . (b) p'revious or sub.sequent conduct, other than · a sta.te-
portuni,ty; · ·· · ;. · . ment;
i . (b) the questiion is, . whether X .mur.der.ed Y. The fads that (c) any s-tatement aff'eding such conduct.
,. X had . taken money .from Y and that Y on the day of
!.-;,. mur,der had ,gone to X to demai:i,d it are relevant' show- (2) 'Motive as relevant fact:
{;, _. . ing occas,i-on, . cause or · effed of the.. fact in issue;
: ,i :.~·
. ·: ·'· (c) the :ciuesfi.or is, whether X pojsoned Y. The state of Y's There i,s har,dly any voluniary ad tha,t has not a motive.
· health before the symptoms asc.r.ibed to poison, and ha- The absence of any motive is generally a circumstance in favour
bits of'Y kn-0wn to X, ·which affor,ded a.n opportunity for ·of the accused . Of course, when there is a clear proof of the
. the. a·dm!nistration of poison, .are r~Levant fac,ts to prove oommissi,on of tl)e -0ffence, the question of motive becomes im-
the stafo . of things under whicl:t the poisoning occurred material and is not_ n~cessary for a conviction.
and th~ -0pportunity.
(3) The opportunity to c-0mmi.t an offence must always be a
relevant fact because there ca:n be no offence wi:thout the op- ILLUSTRATION:
portunity to commit it but it should. be a,ppredated that there
is a wide gulf between the o.p;p.ortunity and .the actual commis- X is charged :with Y's murder. The facts tha·t X· had pre-
s:on ·or an of.fence. viously murdered Z and that Y knew about it and that Y had
once tried to extort money from. X by threatening to 'div1:1lge this
informaoti,on, are relevant a·s sh-0wing motive of X for murder-
Article 138 ing Y,
· ·;,Vlotlve, preparation and previous and subsequent conduct
!
(3) Preparation as relevant fact:
. Any fad is relevant wh.ich: Prepara-U,on oonsists in devising or arrangi·ng means ne-
cessary for- the commission of an offence. This is just a step
(a) shows or consti'tutes a motive or . preparation for · any before the attempt to commit an ,offence.
j'
I:
!.
,. fact in is~l,le or relevant fact;
I . (b)
is the conC:11ct, previ,ous or subsequ·ent, other than a
statement.of any person who i·s -the accused in ,any. pr-0- ILLUSTRA.TION:
ceedir:ig's; if such conduct influences o,r 1s ·influence,d by
any fact in issue or relevant fad; or X is charged with Y's murder by poison. ·The fact that,
before Y's death, X purcha·sed poison similar to; that which was
administered to Y, is relevant.
 Ir:
- 166 - - 167 --

(4) Previous or subsequent conduct other than · a statement as (d) fix the t.i:me or place at which any fact in issue or rele-
relevant fact: va:nt fact happened; or

The conduct made relevaint by this Art.icle is that which in- (e) ~how the rela'fion of parti.es by whom any such fact
fluences or i.s influenced . by any fad i,n i•ssue or releva.nt fact was ma1de,
This means that there must be a direct or immedi,ate relaHon
between the conduct and the fact in issue.
are relevant insofar as they are necessary for that purpose .
.I
ILLUSTRATION.:
NOTES
X is charged with an offence. The facts that, eHher before
or ~t the time of, or after the alleg~d offence, X provided evi,den·ce This Article deals wuth fa:ots which are .expl~natory or intro ~ . ;.·. ·.
which woul,d tend. to . give to the fads . of the case an appear- ·! ductory of a relevant fact. · Such facts,..gre : o.ften ,of considerable
an~e favournble .tp himself, or that. he destroyed or concealed help in understanding: the .rea l nature of ar{ .eve·nt, in .supplyfng ·
evidence, cir prevented the presence or. procured the absence of missing links or in !~a ding upto the main fact.. -Some .of these;
. persons who might have been witnesses, or subor.ned pernons may be explained by. the following \·llustrations :- · ;
to give false evi1dence respecting H, are relevant.
(a) X, accused of theft . Fs seen to give the stolen property
(5) Statements are relevant if they a·re made to or in the pre- to Y, w:ho is seen to give it to X'. swHe. Y says ais he!
sence or hearing of the person whose conduct Is made relevant ·delivers i.t «X says you a.re to .!!if!e this·». Y's statement'.
. and if such statements affect the cond.u.ct in question. is relevant as explanatory of a Aad .. cwhi.ch is part of the :
tra·nsaction;,

J'LLUSTRATlON: (b) phot•ogra.phs proved by per·sons who can speak to their '
accuracy are generally admissible to prove identity of ,
The questiion is, whether X r.obbed Y. The fads :that, a.fter · persons.
Y was robbed, Z said in X s presence - «The poJ.ice are com-
in·g to l·ook for the man who robbed Y», and tha.t immediately
afterwards X rnn away, are r.elevant. · · Al'tide 140
Things satd or done by conspirator .in ·reference
ArHcle 139 to common design
Facts necessary to explain or Introduce relevant facts
Where there is reasonable gr.oun,d to believe that two or
Fads whkh : · more persons .have. cons,pired ·together to comnHt ~ri of,f ence, any -
thing sai,d, done or written by any .one of siich ,person•s. in ref-
(a) are necessary to explai.n ,or introduce a fact i1n iissue erence t,o their c:0mmon intention, aHer the time when such in-
or relevant fact; tenUon was first en,ter.tai·ried ' by any of them, is a relevant fact .
as against each .of . the persons believed to be so conspiring for
(b) sup!}ort or rebut an in[erence suggested by a [act in the purpose of :
issue or relevant fact;
(a) proving the existence of · the conspiracy; or
(-c ) establish the idenUty of a,n,y thing' or person whose
(b) showi~g that any such person was a party to it.
identiity is relevant;

....
 - 168 - - 169 -

...... NOTES ILLUST~ATIONS:

· (a) The question .is whether X commHted theft ,in Hargeisa

: The application of the rule of law contained in this Artide at a .certam time. The fact lha.t at that· time he was · at
i4 ~lrictly condHional upon there being reasonable gr,ound to ··;- (vlogadisihu is ,re,levant. This is what is k.nown a-s alibi.
b~liev~ that tw-0 or more persons have conspired together to
cb~m1t an offen~e. Once ·this cond!tion is fut.filled, .anything
said, done or wntten by each cons,p1rator in referenc·e· to their (b) The question is, whether X committed the murder of a
common intention is admissible a·ga·irt,st each .of the others, both . warder who was lo,cked up in a prison room with three
prisoners ~. Y ai:id Z. It is proved that no one else
for proving the exi•stence of the conspiracy 'as also for show-
ing that any such person was a party to it. . '·. ' entered the prison room on the night of the murder. Evi-
dence is prnduced that Y and Z . had their hands tied
up. This evidence is admdss·i1ble since i,t makes it hi-ghly
ILLUST~ATION: probable that X committed the murder. ·

. Reasonable groun.d exists for believing that X has joined in

a, conspiracy wi.th .Y and Z to commit theft. The fa.cts that X ArHcle 142
told to a friend that they were going to cbmrriit theft; and Y Facts showing existence of state of mind or body
and Z . procured house-breaking implements for the purpose ar-e
relevarit facts against .ea,ch of them for the purpose of proving
· tl:te existence of ·the consp-iracy ..and that X, Y and Z are party When the existence of a state of mind or body 'or · of bodily
to , such conspiTacy. .. feeling is a fact in is·sue or a releva.nt fad, ihe facts .·whlch in re-
latiqn to the matter -in question show in a given person the exis-
tence of :
Chapter II
FACTS
; ·. RELEVANT
. ;
IN CERTAIN. CIRCUMSTANCES' ONLY (a) any state . of mind, such. as inlenUo.n, knowledge, good
i .
faith, negHgence, rashn.ess, good-will or ill-will;
Artjcle 141 ·(b) .a sta,te of body or bodily feel.i-ng,
When · facts .. not' otherwise relevant become relevant sha.Jl be · considered relev•a:nt.

Fads not otherwise relevant are relevant : NOTES

(a) if they are inconsistent with any fact in issue or rele- This Article deal!> with the relevancy of faicts showing ,the
vant fact; ·.or existence of a person's st.ate of mind or 'body .or bodily feel-
ing. The state of a man's mind is a fact p.ecuLi.arly within his
o·wn knowledge ·and nothing is more dif.Hcult than to probe
(b) if, by themselves or in connecHon with other fads, they h.is mind · in or.der to ascerta,in wh,a,t was pa.ssi,n g within him
make the existence or non-existence of any .fact in issue when . he committed a particular act. States of mind, such as,
or relevant ·fact highly probable or impro.bable. intention, knowledge, good faHh, negligence, rashness, good-
will, are not capable of per,ceptio,n by the senses but in certain
cases they have got to be proved. It ·has therefore been laid
NOTES down in this Arti-cle tha,t when the existence of any state of
mind or body or bodily feeling is in issue or relevant, under cer-
tai.n limitations, what he· said or did in relation to tha,t act or
. This Article declares admissible facts which ar.e logically other similar . ads, whether before or after, is admissible, if it
relevant to prove or disprove the ma.in fact in issue.
 - 170 - - 171 ....,..

tends to explain the ·mot.i:ve or inte.111trion whkh i.ns1pired the act or Article 143
the knowledge under which he acted . But it should be remem- Facts beating on question. whether act was
bered that the fa,cts recehrable .under this Article are admitted
not in proof of the tr-uth of the facts stated, but fo sh:ow the exis- accidental or intentional
tence of the alleged state of -mind or body ·or bodily .feeling, We "
have no · i'Lgh't to proye that a ma,n commLtted a theft or .any When there is .a question whether : · . . ·''

other . offence on one occasion, by showing that · he co111mHted

s~milar offences on other o~a-sions. The fact that. a man is gene- (a) an ad w_as a,ccidental or int~ntioni:il; or
. r.a:lly or habitualfy dishonest, malicious or negligent; Qr that he (b) done with a .pa'rticuFar kno;ledge or intention,
has . a ;tendency to do criminal acts, has Httle, .if a,ny, bearing
on ..the state of Ms mind in reference to the particular rrta~ter ·the fact that such act formed part of a s,eries of s-imilar occurren-
un.der inquiry · -and to a.dmit such evi.dence would be to create
prejudice and ·to !•et .•in . a mass of mathirs which fostead of afford- ·ces, in each of which . the person doing the act was c-0ncerned, is
ing any help is likely to cause great mischief. ·'relevant.

·,.f NOTES
ILLUSTRATIONS:

(a) X is accused of rece1vmg sfolen property. It . is· p,roV7

This Arbicle i,s an a,pplica.Hon of the general rule laid down
,in_ Hie preceding _Artide. Ev,i·dence.. _of: siI?ilar .fact~ Js releva~t iI
... Ip pr,ove knowledge of the· fact under cons1derahon or, a person s !
ed that he \vas i·n possession of a partilcular st~len .art.i- intenti-on with respect thereto. Such evidence is received not
cle. The fad that, at the same time, he was in possess- .because a person c•ommitHng one offence is likely to commit
ion of many other stolen articl.es ,is relevant, as tend- . another offence of a similar nature, bwt to ·show his intention or
i.ng Y, showing ill will on X's p.art towards Y i·s relev,ant, 'knowledge and rebut the defence of accident, mistake . or inno-
of which h-e was in ,possession to be sfolen. · cent intent.

(b) .X is accused of defaming Y (Article 452, Penal Code) by ILLUSTRATION .:

publi-shing an imputation in.tended to harm ·Y's . repu-
tation. The fad of p.rev:ious publka1t.Lon by X reS!peot- . X is aocused of burning down Ms house ~~1 o~d~r ·.t_o obtain
i,ng Y; .showing. ill-will on X',s part towa,r ~ Y :is reJ.eva:n.t, money for which it i-s ·.insured. The facts that X hyed .m sever- .' ·}. ' ..
·a-s :prov-in·g )C's intention to ha.rm Y's reputation by the ., al' houses succesS1iv.ely, ··eacQ of \Vhkh he ins~r~d, . in . eact of
parHcular publiicatiion in question. which a fire occurred, and after each o-f such fm;s X rece.1ved '. ::.'
payment from ..a different· in~urance office, are relevant as tend- ·
The facts that there was no previous ,quarrel be- ing to show. that tJ'ie fires were not acci,denfal: ··
tween X and Y, ·and that X reported the matter com-
pla ined o:f as he hea-rd it , are relevant, as showLng that Artide . 144 .
X did not i-nten,d to ha·rm Y's reputation.
. Statement forming part of a ioriger statement of .transaction
(c) X is charged with shooting at Y wi.th intent to kill him. When any s,tatemen.t of wl:iidi. . e:vicilence is given forms part
In order to show X's .intention, the fact of X's having·
pre:viously shot at Y is relevant but the fact ·that x ·was·
in the habiit of ,sh,ooUng at ·people is irrelevant . .
(a) a !,anger statement ;
(d) The question is, whether X's dea-th was caused by poi· (·b) a cortv-ersation;
son. Sta.tement.s ma,de by X du~i.nig his illness as to (c) an Isolated document;
his symptoms are relevu.nt fads. ,
 - 172 .:._
- 173 -
(d) a document contained :in. a: bo.ok: or
the truth . of the aocusa-tion made· a.gainst the other. However,
(e) a serit}S .of. lett.ersi or. pa:per,s,· before ·a confession by one of the accu:sed ·can be taken into con-
sider~tiqn against a co-aocused, the following conditions must
evidence shall he given of. so much, a;nd . no more, of the state- be fufilled :-
ment, conversaf.i.on, document, book or ..s:eries of J.etter.s .or papers .
as the Court .co_n_sj d~rs necessary in that ,particular· case to the (a). th-ere must be a joint trial of the llccused per~ns·;
foll ~nderstanding of the natur,e· and· effect of the stat€ment, and (b) the joint tr:ia.l must be for the same offence;
the circumstances . under which H. w.a.s: ,mad.e,.
(c) the con:fess,ion mu:st implicate the · maker substantially
to the same extent as the other co-accused; and
Article 145 (d) · the confession must be duly ·prov€.d.
· Previous judgment

For purposes :of paragraph , 3·, of: Ar,tide 13, the existence of··, · ILLUSTR.ATION:
any previ-cius · judgment which by law prevents any Court from
":- 't. holding a' tdal, is, ~ · relevant fact , when the quesUo.n is whether X and Y are Jointly fried for Z's ·murder. It is proved that
.such Court ought to hoLd such tniaL X confess~d -'- «.Y. and I murdered Z» . The Court may consider
·? . . t~e effect of this confession against Y. ·
,.
!" Artkle 146
.. j ' (2) It will be noted that this Article states the Co,ur.t may t.ake
I, into consideration the confessio·n of an a.ccused person against
. t k Consideration. of proved, oonfosslon, of! co-accused a co-accused·. Thi•s means tha,t the confessio.n of an accused per-
I

son is not substantive evidence aga,inst a co-accused in the sense

When : that conviction on tha·t alone could be ·supported. The reason
obviously .js that it is not given on oath in the pr€se.nce of. the
(a) more persons are joj,ntly tried . for the same offence; a.nd other ·accused and cannot be tested in cross"examinaHon. It may
(b) a confession : only be tak€n to lend a,ssurance to any relevant evidence beating
on the ·.co-accused's compHcity in the ·o.ffe.nce. .
(i) mad.e by .one of such persons; and ;• I
Chapier Ml
(ii):JmpliAatjng \jm~~lf. and~" some· of t.h€ other co-.
accu·sed:,is; ,p.r.ov8d; . ·.STAT:EMEHTS BY THE ACCUSED
I,

. :the Court may fake i,nto oonsilderaht~n.. ,the confess,i~n. as against .:

Section I
:the person. making . it. a~? .any othe.r '90;l!ccused in:i,plicated by . H... ; '.i
1· ·' . . . . !.· "' . ·. , . .. . . . .·:· -·. · · ADMISSIONS

· ·N, 01 T:: E:·~. Article 1.47

· ,(!) .. ,What is ·stated in this Article i·s im e~ception .to· the gener'. < Definition of admission
Al ' principle of · crimifi.a•l law · that a y0nfossLon . is evi,dence only · .:
iagainsUhe :maker. .As.·such, it should be appU.ed. with th.e g,reat'.·){ . An admission is an · oral or wri,tten statement which suggests
:est strictness . and CcJ.Ution. · The pri-n:ciple on which ·the confes·.\ any inference as .to any ·fact in issue or relevant facl, an<l which
;sion of ·one accused m.aY be oonside.r-e,d. a.gainst a co-accused. is ·:: is made by any person who is the ·accused in .any criminal .pro-·
:that self-implication is· supposed to provi.de sorrie guara,ntee. of )' ·'l'l!eding.
' ~
 ·17 4 -:-- . ;
_:_ 175 -
i
Article 148 admits o.nly one incriminating fad, viz., the owner-ship of t hi•
knife with which Y was murd•ered and in .itself is insufficient h,
Relevancy of a,dmisslorts prove X's guilt of murder.
·'i

Admissions are releva,nt and may be proved as a,gainst the/ Anticle: 150
.person .who m_a,kes them, but t·hey may_ not be proved. by or on·.;·
behalf of the person who ma,kes them. .·: Confession caused by inducement, threat or promise .
·,-
A confessio.n made by an accused perwn . is irreleva,nt : in a
SecUon II criminal proceedi.ng, if the maki111g of the ~onfessiion ?ppea rs to
CONFESSIONS . the Court to have been cau~ed by inducement, threa-t or prnmise . .

Article 149 NOTES

Definition of confession
{!) This Article :declares a confessi-on to be. irrelevant 'if it
appears to the Court to. have been causeo by inducement; thr·eat or
.. A confession is ·a written or oral state·menl by a person char.g- <:', pr-0mise. · In other wends, if a confession . is ,not vol-un,tary, it is
ed with an offence staling or suggeslin.g the inference that he .': not relevant and must be exclude·d . What constitutes ind,uce-
committed that offence: :·', ment, threat or pr'omise depends on the circumstances o,f each case
and it is d-ifficult to lay down any hard -·- ·,..and. fast rule about it.
(2) ~ut who is to prove the voluntary nature of a confessi-0n?
N OT E $ · The answer to this question would appear .to be · tha-t a confes~ion I ·
. ,
duly taken in accordance wiith law is reievant; but in case of ~ny
. : . . . Arti-cle H-r·.de.fines ;hat an a,d~·ission i-s . and this· A~ticle de-· .. doubt or when. challenged, it is for the pro·secuUon to · prove to
the ·satisfaction : of . the Cour,t that the confess,o.in was voluntary.
':
·... , fln~s a· cpn[ession. The distinc-tion :.between these two ·terms is a-'-::
. }llbstarHial . one. Confessions are qne speci-es . o.f the genus ad~ .:, · 'There 'is no onus on the accused to prove that the conf essfon
;._in.,lssions, .viz., a.n a.dm!ss!on of· a direct irnknowl~dgemenit of guHt:... . made was .caused by inducement, threat or promise.
· by_the accused m~ cnminal case .or of ·substanha.Uy all ·th~ facts t.,
which constitute the offence. All confessions therefor.e come under : ,
admi·ssions, but all admissions are not confessions. To distin- -.;; Article 151
guish a ,confession from an a,dmissi:on, one test would Qe whether ·-~- Cases in which confession is not admissible in evidence
the statement confessing guilt' is alo.ne sufficient to convict the :
accused; if it is, it is a confess-ion. ,If however, it falls short of .,: I. No confession ma.de by any ·person shall b.e proved as against
. ·;,._ · ·.
', ..·.
an acknowledgemenl of guilt -but the staterrien.t is of some ·incri- ·
minaUng · fact or fads which taken ·along wi.th other evidence such person, •unless th~ confession · is . ma~e· h~f9,re a )udge, ;a:-s
tend lo prove his guilt ; it is an admission. provided in Articl~~This restrkti-0n on ·c.onfession · as ~vi- . ·1· 1. •

dence
•
shall not -be aipplicable
•
.in cases falling •within the •jurisdic-
1
tion of the Nation.al Securi,ty Court. ' :
ILLUSTRATION: (As amended by Article 10 :of La,w No. 8 of 26.1.1970) .·
X is charged with Y's murder by stabbing· with a knife. 'X'. ·:··: .. :2. However, when any . fact 1s alleged tq have been discover,ed
.~~ys,: - << I murdered Y by sta,bhi.ng,. hi,m with this .ktlife». This ,;:·: -~ in consequence -of , informati.on received irom a: J}ersoh accused ;or
· is ·a ·confession within the meaning -o.f fhis ArHcle because it is. / any offence, so much of sµch · information, whether' it amounts 'to
· ?i-rect acknowledgeme·nt oi the guilt. But i,f . X says, -,- «T~is i·:·,; 1·, .
a confession .or n-0( ,- as relates distinctly to the fact thereby di.s-
: knife with whkh Y was murdered is mine», i.t is only· an adm1s,, ..; ~: .
sion wHhi-n ·the meaning of Article 147 because this s-tatemehl ·;_. . covered, may be proved. ·
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- --------
- 177 .-
- 176 -
NOTES
NOTES
(I) In order to ma-ke an entry in any publ.ic or other of.ficial
H) . Paragraph 1: The · effect o,f ·this . paragraph a~ read with . book, register or record admissible under this Article, it should
·Article 68 is that only those confessions ;Which are d,uly recorded be shown that the entry stating. a fact in ·issue or relevant fact
. b'y a Judge may be .pr.qved a.gaiinst the ·,maker. But as a result was made :
· 6.f ·an al')1endmenf b)' Article 10 of Law No. 8 of ~6 January, 1970, (a) by a p_ublic servant; or .
thfs restriction .d<ies not a,pply to cases fallihg within the jurisdic-
tion of the National Security Court. . , (b) by a ,person entrusted wi.th a public service; and
(c) .in the discharge of his official duty.
(2) Paragraph 2: This para,gra,ph is an exception to th·e pro- (2). The l-erm «pu?lk- ~ervanl »_ i~ this Anticle is, presumably,
visions of parag-ra-ph I, in that, i,t permits the pr.oof of the infor- equiva_lent to «pu·bllc officer» within ·the meani,ng · of. Article 240
mation · (whether it amounts. to confession or not) which relates (a) o,f the Penal Code as rep roduced in Note (2) un,der Article 18.
distinctly to the fad thereby discov,er-ed. Thi~ is based .on the _(3) ~he _term «·pers-011 entrusted with a public-service~ is defined
view that if a fact is actually, di-scov,ered in consequence o.f the in Article 240. (b) of the Penal Code, am! is· repr9duced in Note
information given such as the stolen g,oods, blood-sfained knife, (2) under Arbclie 18. · ·
· the dea,d body or the clothes which the v-icti-rri y.ras wearing, some . . . . . . .
guara,nfee is afforded thereby that the .information .was .true -and (4) The ~a~n .reason fqr treating such entries as relevantis the.
cari'; b~ . safely allowed to be given in evidence; · But it -must .be . presumption that' a public officer or a p,erson- entrusted with· a
, noted that only so much o.f such information a,s relates distinct!): public ,service, does his duty faU-hfully . When it 'js par,t ·or his
·\ toi the fact thereby dfacover-ed is re.levant and no mor,e. duty to.·maike an eJiltry · as to facts . coming within his· .officia·I cog-
·. ·! ·•: · nizan-c-e, · the gr-eat prnba:bility is that: he does his. duty and-makes
a corred entry in the public records. · ·
.,. _JLLUST~ATION:
Article 153
'·:. X is accuse,d of Y's mur,der. He saysJ - «You will. find the
... :1~ri-He buried in, the courtyar,d of my house. I killed Y with it». As · Statements as to facts of. a public ·nature
a ·result of ,this information, a blood s.t-a.ined knife is discovered.
0

S0··ri1tich. ofthe ·i:1formatio.n as relates cLis'tinctly to the · disc_ov,ery When the Court has to form an opinion as to the · existence
:or the·Ikn ife ' viz.;-\<Yi>'u -will find the kni.fe 'bunied in the ·courtyar.d of any fact of-a •pliblfo nature, ari.y statement ·of' if made : .
. M mvl hous~» ii:: a-dm.i-ssi•ble but n.oMhe: words «I kiHed,Y wit.h it»
.. ~ince'.;tnese ·latte( :wqrd:s do 'not r,elilte to . the d.jscovery of .the (a) in any law; or ·...
. . .
!{nif e. :. . . · :
! .
I •. (b) · in ariy statement, publication or notification· mad~ : in
·.:i.
•!,
! ; i accordanc·e with or under any law,
Chapter -IV is a relevant fact. ·
·.st.ATEMENT 1N PUBLIC oocuMENTS
, Artide 154
. :....,..,."" .. Article 152 Relevancy 6f statements in charts. and· maps·
'·· . .
·Relevancy .of entry in public record
-S-ta.tements . . ~ ;ade. in :.. ·.
. of facts in issue or relevant, facts
; /1:1 ;'!ntry in an'y public or other of.ficial book, register or (a) ma·ps -OI.' plans ma·de under . th-e authorittof: ,the· Sfo.te; or
~e~ord, slating a .fact in . issue or a r-elevant fact, and ma-de _by. a '(b) -p·ublished maps- or charts gen.erally 6Jfer.ed · for : puplic
public servant, or by a pers-0n entrusted with a public service i_n .sale;
the discharge of his official duty, is itseH- a rel evant fact.
 178 - - 179 -

are themselV1es r·elevant facts as to matters usually represented . (iv) the date of the , letter or . other document usually da-
or stated in such maps, charts ·or .pl·a,ns. . te.cl, written or signed by him;
. (.c) .when the statement is ,a15ainst the pecuniary or proprie- . •'\'.-'

Chapter V tary interest · of the pe~sbn· making it, . or -when, if >true,

.. • .
it . would exp.ose him or would have exposed him to! cri-
STAJEMENTS BY PERSONS WHO CANNOT BE . minal prosecution or to a suit)or damages.
CALLED As· WITNESSES
N O T E S . ·-----· --
Article 155
Cases in which· statements ·by persons who cannot be called ( 1) This Article enumerates certain exceptions to the .·general
I rule of exluding the hearsay evidence. These exceptions are :
as witnesses are . relevant
(a) statements relating to' cause of death;
\
Statement·s, written or oral, of relevant . facts made by a (b) statements made · in the ordinary course of business; i ·'

person who is .dea·d, who cannot be found, wh-0 has b€come in- (c) .-statements . made against interest.
capable of giving ev.idence, or whose attendance cannot ·be procur- (2) The above exceptions apply to statements made by a person :
ed without an . amount · of delay or ·expense which, µnder the
(a) who is dead; or ·
circumstarices of the case, . appe.ars to the Court unrea;sona:ble, are
themselves relevant' .fads in the following cases :- (o) . who cannot be found; or .
(c) who has become incapable of giving evidence; or ;~' : .
(a) when· the statement -is made by a person as fo:
(d) whose attendance cannot be procured without unreason-
(i) the cause of his death; able delay or. expense. · .· •
(ii) any of the circumstances of the event whkh resu\t · (3) . Tht: ·underlying .pri.ndple , for receiving . such :: s.t~tenf~nt~ <is 1
ed in his death, the principle of necessity. Such. statements a·re .admissible •ibe· .· i .
... , . cause the person making them i~ :dead or ·r10t =aVailable'. and don.• f·
in cases rn· which the .cause of that person's dea,th comes sequently no better evidence could be had. · ·· ·
ihto qu·es.tion; (4) Sub-paragraph (a): , Statements made by a person who is 1

death produces in a person's mind the same feeling .as that of a

.(o) w.hen the statement was made ·by such person in th{ stances of the event which resulted in his death ar~ relevant in
ordinary course of business, and wh~n in . pa,rticular it cases in which the cause of his .death comes into question. Such I j~• •

consists of : · ·statements are commonly known as <~dying declarations». Their

admissibiHty rests on the principle that .a_s~11se of impending
(i) any: entry or ~emora.ndu.m ma-de by him in pocks death'. pro·duces i_n a person's mind. the -same feeling as that of a
kept Ln the o'rdinary course of b.us-i'niess, or · in the consc.iehtious and virtuous person under oath. In · the words of
discharge of professional duty; an English Judge, - «The .general principle on which this spe·
cies .of evidence is admitted is that they ·are declarations made
(ii) an· acknowledgement written or · signed by him of _in extremity, when _the party is at the point. of death, and when
the recefpt of money, gooids, secur,i~ies · or property every hope of this world .is gone, ,when every motive to falsehood
is silenced, and the mind induced by the most powerful conside-
of any kind; · ·:.•i
rations to· speak the truth; a situation so solemn and :;o ·awful is
· . considered: by the · _la,\V ·as . c~:e~ting an o~.li.gatjon ~qua I. to that
(iii) a document used in .commer·ce written or signed by . which is imposed by a ,!}9sihve oath adm1mstered in a Court of
him: or Justice». · 1
·

•I'
 - 180 - ·
- - 18! -
ILLUSTRATION:
,.. :-· - 2. Evidence referred to in paragraph of this Article shall be
: The question · is whether . X was shot ·dead by Y. A' state- relevant only :
m~nt. by X as to the firing. of the shot by a revolver by Y and
the c1rcumstances under which the shot was f.i.red is relevant. (a) when:
(i) the witness is dea<l;
(5) Sub-paragraph (b): The statements referred to in this
s~b-paragraph are also relevan.t on the principle of necessity. The (ii) the wHness c·anriot be round :
witness being .dead or unavailable, ·it is the best evi.dence that (iii) the witness ,is incapable of giving evidence;
could · be had . · The reason for admissibility ·is that such a state-
ment made in the ordinary course of business may be presumed (iv) the witness is kept out or the· way by the other par-
to have been made from disi.nterested motive and may therefore ty; or
be taken to be generally true.
(v) ,the presence of the witness ca,nnot be obtained
ILLUSTRATION: without an amount . of delay or .expense which, und-
er the circumstances of the case, the Court consid -
The question ·is, wheth·er X; a person who · cannot be follnd, ers unreasonable; and
. : wrote a letter. on a certain day. The fact that a letter wr.itten by (b) if':
· .. him is . dated .on that day is relevant.
' ·(6) Sub-pa~agrctph (c): Such statem;ents a.re relev1tnt on the (i) the proceeding is against the same person o.r per·
:: ground . th<\L :what a person says against his interest is in all sons;
. . ,pr'obability true:· The principle is the same a·s that of admissions (ii) the party, other than the pa r~y calling the witness,
· urider, ArUcle 148.
had the right and opportunity to cross-examine; and
(iii) the questions in issue were substantially the same
- ,.,, ,- .~ ·.- ILLUSTRATION: in the first as in the second proceedings.
• I
;,
: ,:
. i· . :Where a:n accomplice incriminates himself and another per- N O ·r E S
:: s~n !, by,- ,a stat~me'.nJ: a'bout an alleged offence and subsequent\y
dies, 111s ·.. statement 1s relevant und:er this sub-paragrnph as 1t
wo.ut d' have eX:posed 'him to criminal prosecution. This Artide lays ·down the conditions under which seco.nd -
I
' '
ary evidence of the testimony ,or a witness in a previous judicial
'"
i
proceeding is rendered a,dmiss ible in a subsequent or at a later
' · Article 156 stage of the same proceed.ing. This is based on the rule that,
I' , "
the best evidence available must always be produc·ed. When it is
l . :R.elevanq.: of ,certain evidence ln subsequent proceedings beyond the power of a party to produce a witness ~n account o.f:
·,....
(a) his death; or
I. !l:vidence ·given by a witness in a judicial proceeding or be- (b) not being found; or
~: .
fore 1·a person· authorized by law to take it is relevant, subject to
p,diigraph 2 of this Article, for the purpose of proving the truth (.c) ,inc·ap.ability of giving ~vidence (e.g. insanity); or
' .~ (.d) h.is being kept out of the wa y by the other panty; or
of the· facts which it states i:n :
(e) undue delay br ex,pense involved in· procur.ing his pres-
(a) .a' subsequent judicial pr-0ceeding; or e·nc.e, .
his previous deposition is admissi,ble in subsequent proceeding
(b) a later stage of the same judicial proceeding. or at a later stage of the same proceeding for the purpose of pro-
ving the truth of fa.cts stated therein if : ·
 - 182 - - 183 -
\ .·
(i) the proceeding is against the s·ame person; as a general rule, not relevant. But there are cases in .which a
Court i·s not i,n a · position to come .to a correGt · conclusion with-
(ii) the party aga.inst whom the deposition is tendered out the help · of persons specially skilled in ·particular subjects,
had the ·right and the opportunity to cross-examine commonly know.n as experts. This Article deals with two such
in the previous proceeding; and subjects:
(iii) the questions in issue are substantially the same i.n (a) a point o.f foreign law;
both the proceedings.
(-b) a point of soience or art.
(2) In the case of an opini-on by an expert, the following three
ILLUSTRATION: questions necessarily arise:- · · ·
(a) Is the subject concerning which he· is to testify one upon .. , ,1-.,.._ _ ,. .
·.,
X was charged with causing grievous hurt to Y. He was_ whkh the opinion of an expert can :be received? ·
convicted of the offence and sentenced to 4 years imprisonmenit:
Subsequently, Y dies as a result of the injuries received which (b) What are the qualifications necessary to entitle a
had formed the subject matter of lhe charge.- X is now charged witness to testify as an expert?
for _Y's murder under paragraph 4 of Article 13 but in the mean-
time out of the two prosecution witnesses in the earlier case,
one has died and . the other has gone mad. In these circumstan- (3)
.
(c) Has the witness those qualifications? .
The term «foreign law» means what it says and needs no .ex-
ces, the ev-idence of the two wi lnesses given i.n the earlier case is planation but the term «science or. art» is ·a broad ; term and it is
relevant. not always easy to determine what is or is not «science». or. «art».
However, this term is not to be "construed in a:'. narrow sense ..,All
subjects in which peculiar -skill or experienc.e or special study · is
Chapter YI necessary to the formation of an opinion come within this term .
Generally, doctors, engineers, artists, mechanics, etc., ·are .called
OPINIONS OF EXPERTS upon to give expert opinion.
. : \•
Article · 157
ILLUSTRATION:
Opinions ·of experts
The question i·s, whether X died of poisoning . . The opinion
1. When the Court has to form an opinion: of a doctor as to the symptoms produced by the. poison . by which
(a) upon a poind of foreign law; X is supposed to have died, is relevant. ·
(b) upon a point of science or art, . (4) It will be noted tha,t this Article declares the opinion of ·an
expert as a relevant fad. This, of course, does not mean that
the opinions upon, tha-t point of persons specially skilled in such the Court is bound to ac,cept the evidence of an expert. His evi-
subjects are relevant facts. dence has to be tested like that of any other witness, because !!Ven
an expert is liable to ma·ke . mistakes. Human judgment is · fal-
2. Facts not otherwise relevant are relevant if they support or lible, human knowl,edge is limited and imperfect. Also, an ex-
are inconsistent wi.th the opinions of experts, when such ~pinions pert, however impartial he may wish to be, is likely to be un-
are relevant. · consciously prejudiced· in favour of the party vih.ich calls him : as
a witness.
NOTES (5) Paragraph· 2: This parag~aph means that" w~en the opi-
nion of an expert ls relevant, any fact, not otherwise rele~ant,
( 1) Paragraph 1 : According to Article 184, witnesses are re- which supports or rebuts ; the same i·s also relevant. That 1s . to
quired to state facts only, i.e., what the¥ the1:1~elves saw ~r heard say, the opinion of an expert is open to corroboration or rebut-
or perceived by any other sense. Their opinions or pehefs · are, tal.

·, r •
 - 184 - - 185 -

JLLU _STR.ATION: Article 159

Opinions as to usages
The question is, whether X was poisoned by a certain poison. c;
The fact that other persons who were poisoned by tha.t poi-son,
exhibited certain symptoms of the said poLsnn, is-relevant. When the Court has to form a.n opinion as to :
(a) the usages a_nd· traditions practised in a given area or
Article 158 by an .ethni-cal group or by a group of persons; or
Oplniot,s as to handwriting (b) the meaning of words or terms used in particular areas
or by an ethnical group or by· a group of persons,
When the Cour,t has to form an opinion as to the person by the •opi'nions of persons having special knowledge of them are
whom any document was W;r.itten or sign{:ld, the opinion of any relevant facts.
person acquainted with the handwriting of the person by whom
it is: supposed fo be written or signed that H was or was not
written or signed by that person, is a relevant fa.et . Article 160
:-, . T-- -·
Grounds of opinions
;.• NOTES
Whenever the opinion of any pernon is relevant, the groun,ds
on which such op.inion is bas,ed are also _relev.anL
., . . The preceding Article de·als with the opi.niOIJS of expert wit-
. ·: riesses · but this · Article makes the: opinion o.f ordinary witnesses
· · i: as relevant on the question of handw.r-iting. Any person acquain- Article 161
. : t-ed ,;vith the . handwriting of another person may give an opinio·n
i whether any/ document. was written pr signed by that other per- · Form of expert opinion
.i sbn ; A person .may )Je ,acquainted with the handwriting of anot,h-
.i e'r person in •the Jollow:ing ways :~ 1. When a Court considers it necessary or proper for the opin-
. i ·." i, ·.: . : ', . ·. . .
L ': •I.{a)° when he . has seen that person write; ion of -an expert t.o be provided about a particular matter, the ·
.'r:(b) .· when .he .has received documents purporting· to ~e writ- Court shall, .:either at the request of the Attorney Genergl or · of
. · ten by' that ,' person in answer to documents written by · the accused qr of its own accord, provide for the appointtnent of
· himself or under his authority and addressed to that an expert choosing him, if possible, from among persons designa-
person; ted by agreement between the parties.
(c) when in the ordinary course of business, documents 2. The appearance of any expert to give evidence, when so cal-
purporting to be written by that p,er,so1n have been ha- led upon, 'is mandatory and 11ny expenses connected therew-i~h
bitually submutted to him.
+ ·"' shall be paid from State. funds. ·
i
3. The Court shall inr'orm the expert of hi·s duties and shall i
ILLUSTR.ATION.:
put its questions to him during the heari-ng in chambers in the '~I
I
.The question is, whether a document is in .the hand";'riting of presence of such parties that wish to be there . . When on . account !
1

i
, X, a itnerchant in Hargeisa. Y i,s a mercha_nt m Moga~1shu, V:'ho of the natur.e or difficulty of the investigation the expert is un- I I

i has written letters addressed to X and reoe1ve.d Le~te.rs _purporbpg able to give his opinion immediately, ·the Court shall fix a time- [· 1
l
1 to b~ written by hirn:~z··is Y's clerk, whose duty 1t 1s to examme
limit in which the opinion may be submitted in a written report,
, and ;file Y's correspondence. The opini~n,s 6f Y .a.nd Z on the provided that such time-limit may . be extended on justifiable
; question whether the document is in X s ha.ndwntmg .are rele- grounds.
• vant, though neither Y nor Z ever saw X write: .
 - 186 - - 187 -

4. . The opini'on of the expert sha II be heard by the Court an·d, (i) .ev,i,dence · has been giV1en that he has a ,good cha-
i.f it is given verbally, it shall be reduced to wr-iting. If the ex· racter, i-n whkh ease . Lt ·becomes relevant; ··'·
pert opinion is given in written form, it shall be attached to the
record .of the .proceedings a·nd a c-0.py shall be given to each of (i,i) the ba,d ,character of any person is ifa.elf a· 'fact in
the parties concerned. issue, 1n· which case i.f. is always .rele.vant. ·

5. An .exp.ert may be called to give evidence as a witness at the 2. A pr·evfous conV1ktion · is rel,evant a,s . evi,d,ence of bad cha-
requesl of .one of the parties or by the Court on i.ts own motion . racter.
6. The · appointment of an expert to give evi,dence shall in no
way prejudice the right of any party to obtai,n, at its own ex-
pense, evidence· from other technical experts. N-O ·T£S ,
!
7. . When the services of a psychiatr-ist are caJ.led f,or, the Court
must ask the psychiatrist whether the a~cused is a person dange-
. Paragraph 1: ·aenern.l ev,vdence ,of good c~aract~r . of: an
accused is reLevant in cr,iminal cases though ··general evidence ·of
rous to society, whenever this is so prescribed by law for taking bad character is not admdssii\J1'e,,exeept in reply ·or where the ·bad
any ' pr-0per security measures. charader is i.ts·elf a fa.et in issue. This is .. base_d on the prind.ple
of fairness to the aooused ·as · evidence of ba,d character in the
NOTES fi~st instance by the prosecution instead of leading towards estab-
,U.s-bment ,oLgui!Lis bound to injure the accused· by. ·creating a
pr~jndfoe ?_gainst him.
(I) This Article prescribes the procedure for :
(a) the appointment of expert witnesses;
ILLUSTRATION:
(b) the payment of their expenses; and
(c) the recording of their opinion. X is accused of theft of Y's .watch . Evi,dence Jha.f X is an
(2) Paragraph 7: This paragraph requires the Court to ask honest person is a•dmissi.ble ,but the .prosecutioi:rcannot ·lead evi-
a psychiatrist his expert opinion whether the accused is a person dence :i,n the · first .:i-ns.tance :.to · show that X is,: an habitual : h1ie!
dangerous to society. Article 163 of the Penal Code enumerates thotigh ·iLis entitl1ed to . do .so in rebut·tal .of, evidence of .good cha-
the persons in respect of whom security measures are applied; and racter or in cases wher,e the .cha:r,g·e itself implies 'bad character.
·Article 164 of the same Code defines when a person shall be deem- e.g., in the cas·e of a,pplicaUon of security meas,ures against p.er-
ed to be a danger to ·society. sons who are a danger to soci:ety, in a,ccordance with Article 163
of the Penal Code.

Chapter VII
'PA,RT. II
RELEY ANCY OF THE CHARACTER OF THE ACCUSED
·PRODUCTIOH .·A:~D ',EFF~CT . OF EYIDENctE
Article 162
, Chapter I i .
Character of the accused
THE BURDEN OF, P.ROOF
1. In criminal proceedings :
(a) the fact that the person accused is of a good character ArHcle 163
is relevant; and Burden on .prosecution.
(b) the fact that the accused person has a bad character
In criminal proceedings, the . prosecution shall prove b~y.oncl
is irrelevant, unless:
reasonable ·doubt :

. ,'
"
 - 188 - . ;,_ 189 .:...:_
(a) that the alleged offence was in' •> fact . c_o.mmHt~d; and •r .. ·: 1· .... •.. . :: .... :i:"· 'qe~)~=-
. •. • . • . , , ' \ , !'. .. :. ·: • ·• N OT E .S. 1 • .: :· : : · : ·. w ~\, ;·,:: ,"
(b) thait the -ac~u.sei_d i:ornmi.tted bL.·
... ,•.,.· ( 1) Like the p.re~eding ~rt.kle, ~hi-~ Artiocle tals,o iHin exception
to the general rule of cnmmal Jumsprudence that the onus lies
, · , .. ·.··.-\ · ." ;1, ,.'! ;; N;,Q T , E ..S'. ..i. • : ... I
on the prosecution to prove the guiltof. an :accused beyonll':lfeason-
able doubt. Accordi ng to this Article, the .burden of _,prov}f~
· ·· :: Thts•:'Arlide''de~iatei? or1~ ·0Hhe tunp~mentil :of ·cri~inai: rui~~ ,the ~~istenee of a:1y. extenua1Hng cjt-c~m~fanc.:s\ (A,r'tff:}~ ~Q.' P!:p ,I
jurisprudence tha-t it ·i-s f,or the prosecution to p.rov,e the guii't'of Co,pt). and- any CI•rcumsta-nces .exduct.11ng-'punishment'.',X~rtic!~g'e .
an accused -person beyond reasonable ·doubt and not for · the to Ga,
Penal.Code) shall be on -the a,ceWse'd. · · . :li :... ,..· _.i; ' ~
accused to prove his innocence. This matter· came before the
Supreme Court in Criminal Appeal NQ; l of 1961, Ahmed Sultan v. • •' . ' ' • • • ..' , •• • • • • • · :' :·,i:· ·:-·:· ::· ·, i ' ......... '
:
0

:,· ./''/"tt~~~
State (Somali Law Reports·, Hargeisa and Burao R.eglons, 1961- ,lli,L·USTRAHONS: , . ·,:.·zi ;);1 s
63, p. I) and has been discussed i~ Notes under Arti!!le 11.0. ' ' .·. :·: ;•:; '}j tfq<:ib
(a) X is accused of caustnig hurt to Y. _He alleges that he
f; ' ' :• , •. ! ·'... ..· ..
acted in a sfate of anger because ,of Y's bea,Hng his son .
• :. '• i ;, •
This is an exten1.1aiting . circumstance under Artkle 40
... · ;. of t.he Penal Code and the burden to prov.f! . this f.act
::· :, .. · i·s·. on X. ·.· .:· ···: ·· ·· · · ·· : ·,
· . . -.i.:::>: . · .. :.· ~- .· . ~- ·.: . . . ·,.14;\;_ . . \ !!:-::·.
, ;,:Unless any· .l.aw provide:s . oth€rwi"s-e; ,the ·lii.trden ol pro<tf (b) X is . charged with Y's murder. X; alleges Jhat he
as to any particular fact lies on that party ..fhb Wishes' th~· Corirt ..... ;;§bibbed y ·iri ·self-def,ence:- ·1this; i,s ori~ cif' the 'tircum -
,:);'l,i: .

.to believe i-n i.ts ex.is-tence. · .; stances excl-u,ding punishment under Article 34 of the
.,. :>: .. , ., ·1. ,.p.~!1!-11 .,0ode ·:and, t-he bur.de-n :~ · prov:e thts ·ffot is1:0n X.
·•
':' 'i ·1("2f. H muit,· howev.er, be remerh berd·;· that, when · the '·burden of 1

,.N .QT E ~ pr·q9.f is ,on ·the :pro5€cution, i-t must p-r.ov.e t.he ·ca,se beyond all rea-
·. I',.. ,!. •~'Ii! .:1 1,:a I o, ~•J:·., :,., , ~,. "
;f.<;~Th,oµgq {n .<! criminal.case -the b.urden.of ..proof: is •<in H1~·:_p:roL
•'. , 0
' :;, 1 ;',,'.' '
'~
'
.,
', , ' ' • ; ~, ., . ,
~P,na.~J~. -d9ub,t. . B4t, \'w.hen the .burden -of ,pr:oo:f.:ts ,Qn!':the accus-
ea; he fa not geileraHy called UpQn .to, . pr,ove),t beyOIJ'Q.,\:!l reasona-
ble doubt. It i.s sufficient if he succeeds i,n ,proving a prtma
Ii , s~~µ!ioth iY~t iHn.e accu.sed wishes : to :estabJ.ish·, ~-- pa rUcti'la'.i!~,f,ac:t:,' facie case and then . the· burden of proof shifts to tht. pro~ecution
e\g:,,.Ql{f?r 'it).sifor.; him_;to .pro.ve this..fact..i : ;..;:,,. ::, ·' . " :in .. 1·,, ' \ iJ!iiicW hli·s stili' 1o·::·dis-charge Hs origiii,al' onus. : · --'., 'l, , ·· l
:.·~ ·,:r .·.. :·. .::, ...·... .;',.::.1 '. : · ,... ·Jr. ·. . -~·~ ::::: ::,\ ~ '! 1 .l'i\ .' ,' . : •' '. : . · r. • , ,; , .. ' . ' j •. •,; " :.,: •

~-'' :•·., : ... '·~· . ),

ILLUSTRATION:
... . ...
.. , .
• ::· ~: 4 ~-i : ~ : .: :

·•:t;·•.,:
··L :';•n.T ,:-• , 1 •, , "Lt_'! ':\. '
Chapter II .
I FACTS WHICH HEED HOT BE PROYED
. X is accused of committi,ng . theft a,t Ha.rgeisa at a certa,i.n ,.. ·. · ,1 · 1, . · i:
time. He wishes the Court tJ believe that at the time in question
he was not i:n.Ha!je,ei:sa · but' w'a;s 1n, Moga;diisn-i.t ...; ;..y.f:ili; for him to · ·Article 1-66
pro~e this. . .-Fadfo Juct1c1a11y noti~ed .
1· : ,' • • ••• ..;· , .-· •;,,.
' '-.!7· .. .... :
... ,... .
.. Ji·.•Artl{:lk"'t6tf •i,.
, .... , ' I •'
;. : .
!r• · rN9 f 1~t.'. qf' \v:hic~)j/ ~ourt will tl!ke Ju.dicill) -~ciWie need be
proved . . · ·
Bu~den of proving that case of ac~used comes within exceptions .:.,. ., : ··.: z ·: ···.1;
. . !·!i;.. s '~.\: :~ ;•1,·i
N O' 'T 'E' S . , .. -1 :.;:n~;-··
a:iiy'6rf~h6e, the burden of prov-
. When a person is·':a:dctrsM·-0f
: . ... iP,j .!h:,~~j~t-!!1~\?i!. e~tmP:)~l~~~i C/ff-Urr.J~:~~lp;c~\~~ of.. r!-r~.~~S!A_nces ·'(1-j!' The'·gen:eira!riiie ;is · that :all facts in £S'sue. ·or ~lf'V'l:lnt facts
exc/uamg ptih1sftment IS Upon tJie accused.
.
, .: .... ,.. ,a,.
J· · ·
...,J,.,.,,, r'...,...
.
in a criminal case must be prov:ed by evi,dence.: This ' Al'ticle is an
 - 190 - - 19·1 -
exception to this general r,ule, in. that, any fact need ncit be p.ro- Article 168·
ved of which judid-al notice:
Facts of 'Which. Court may take -judicial notice
(a~ . shall =·be !a-ken- (Article 167)';
The Court may, al the request of either par,ty ,or on its own
(b) may·be taken (Article 168). motion, take judici.al not-i.ce of any relev,a.nt fact, if it is reason-
(2) The ex.preisi10n <ohake ju.di:oi•al noHce» means recogr.i,ising_ th r. a-bly satisfied that the iact in question is generally known or can
existence and, .trnth of certa-in fads which .are·universally reg:ard .: be easily ascertained. .
ed as established by common notoriety without the pr.oduction
, of ev·idence. But i,t must be remembered that tal~in,g judkial no- ArHcJ.e 169
tice of a fact merely dispenses with the producti1on of evi:dence
and is not conclusi'v,e: · As. such , the other party is :a·t liberty to Lise of reference . material. in taking judicial notice
dispute i-ts correct-ness by off.ering evidence in the matter.
1. In ,aH cases where·the Court must or may lake judi<::ial noti ,
ce· .of·an:y· fact; t.he -C6urt·may resort to a-ppr-opri,ate books or do-
Ar-tide 167 · cuments · of · r,efere.nce for a,ss.i.stance.
· Facts of which Court shall take judiclaJ.. notice ·
2. In the cµses ref~med to ,i,n Ar.tide 168, the Court may refuse .
to take 'judiciial notiioe of any fact, unles,s and until th,c party con ,
The Court shall .take.:judicial notke of the' fo,Jlowing fads :-· ce~ned produces · in Nime any book or document as the Court for
the · purp.ose may cons,i,d-er necessary.
·-(~_} . ail: laws :·~!)d ; regulati:ons in force or · formerly in force
i·n · th~·-somal,i· RepuMitc· or in · any -·,pa.r.t of :the,, te.rr:itoty
of,· the SomaH R,epublic prfor to . its ·: consHtut.ion: a~· a Chapter 11-1
StMe ·and ·a:(so the.. procedure folfowed ·for prepari,n,g such PRESUMPTIONS.
laws ·;and reg_1:]lations; ·
A'rticle · 170
(b) the seal,s of. the, S.tate an-d a-n.y other . sea-ls . which:. any
•person is authoris.ed . to use by . law or may 'have been Presumptions ' as · to· genuineness · or correctness
authorised fo .use i!n the di.f.fenent pads of the State prior
lo Hs constitution; 1. Unless there is evidence to the contrary, the Court shall pre -
sume:
(c ) the accession to o.ffice, names, titles, functions an·d sig- (a) t~al a doctjment is genuine and pr-operly exec,uted if
nature o·f the pers.o·n f.illing for the time bei-ng any pub- issued by : .
lic off-ice in. the Somali Republic, H -the ,fact of their
a.ppoLntment -to such office · i,s notHied in the Offici,al -(i) any or-ga·n of the State or any organ existing in the
Bulleti'n or any similar publication iin. use. in .a,ny part of dif.feremt parts. of the territory of the State prior
the territory of the Somali Repub!i,c · at any time; to its ·,consUtution;.
. (ii) a person exercisi,ng public functions in the Stale .or ·
(,d) the ex,i,stence, t.itle and_ na,tional fla,g of every State r,e- in different parts of the territory -of the State prio i
c-9gni'~ed by·the Government of the Sromali .Republic; to its constitution;
. (Hi) an organ of ·a foreign country or a person exercis-
(e) the . div,ision.s of t-Lme, of.fioi-al ho!ii,d,ays and the . territory ing . p_ublic . functions therein if authenti,cated. in
of· the ,.Stale. accordar,icc with the la,w of that country ;
 - 192 -
- 193 -
(b) !hat every officer by whom any such document purports
t.o be issued, signed or certHied, held•, whe'd he issued , ceiv.er of stol,en g·oods, t1nles.s. he can a.c~ouh,t for hi,s possession, ·
signed or cer.tiHed it, the .official posi1Hon wh.:ch he claims (b) Th.e Court .ma.y P(esume tha,Lan ..accompU,ce i·s unwor.thy
of'ift!tlit, ·unless he· is ·corroborated in material particulars.
in such document.
:2 . For the purposes of this' Article a docume:i't shall mea,n any
\\'ritten communi,cation. Chapter IV
PRODUCTION
'~ I' ' :, . ' ;."i !•: ··~.'. . :
O.F MATERIAL OBJECTS
'
AND . OTHER MAHERS
";, l ~ •:: I • ' : ,• ., ' ' ' i.
NOTES
,, ;!'.· :; : ,;.,_ , •,. , Ar,ticle 172 .

(~: '., . :,..i::' :::\ a';-n:ci ·other

~"
This Artide deals· with the presumptions as to the genui·neness
or correctne.s,s of documents. The term <~presumpHon» is not de-
M'afefhl·'6bj~ds
' ' m~tters
' " which ' ' ' In Court
' ' .ca~' ':be produced ' ; ·:
fined in the Code. Generally speaki:ng,. it , is an . irtf.ererfoe which t there may be, produced befor,e the Court : ·
a Court is authorized to dr,aw from a particular. fact, 'unless ·and
11!1lil the truth of such inference i,s disproved .by pther. evidence. 1,:. (a) ·r.nater.ial ,objeols which were the means ,or th.e subject of
an offence;
1
Artide 171 '· (b),;;'·:68; ' ' ci
r:eco'r.M: ".,conlessions
. taken · in ·a,ocor,d~~~e :wi,Lh Article
Court may presume the existence of certain ..f.~~ts . · .1·

' .. . (,c) any other thing material to the offence, which the Cour!
The Court may presume, in relation to the particular circum- may allow to he produced.
stances of the case, the existence of any· fad which it thinks likely
to have happened, when : 2, Any. par~y ,q,ay
. ... :• . make use of lhi,ng.s pro.duced. in Court:

(a) the common course of natural events; : 1 ; (a-) ;by exami·nirig witne~ses about such tl,i,ngs; ,,• ·
J (• ' '" ' '• ' ', ' '
(b) the common course ·of huma.n na,ture and conduct; or · · (b) b'y referr,ing to such things when mak-ing ariy statern,en·t
bef,ore, or:· request' .to, the Court. ..
(c) the common course of ,pu,b\i,c and .private ,b.us,iness, · 11

reasonably l,ead to such inference, i.:.;

• • ~ • .. : • . J " •
Chapter V

NOTES EVIDENCE WHICH MAY NOT· OR NEED NOT BE GIVEN

The pr,eceding Article uses the words «the Court :sha.11 presu -
me » that a document is genui·ne and properly execufod 1f issued . .. Article J7~
under the specHied circumstance. Thi.s Arhcle , uses the words One spous.e· a~ witness against- the ·oth'er •' Jr •: .
«The Court may presume .....». Thi·s means that a Court may
rl•nw n part'icular ,presumption from exis.Ung or' known facts and 1
thus throw the but,d.en of proof in the Ur.st , i~,stance o.n the party . No 'pei-ion: w·Hci i,s .~arried or has been' m;;r'ied ~ay· give evi -
against whom i.t is drawn . d~tice as.,~g:ainst the ,other. spouse, in reg a r,d'. to ·any,lhi1n,g Iha t has
taken plac,e duri•ng the exi,stence of such marriage, even though
1q.,USTRATION.S :: the ma-rriage has been di·ssolyed .for a,ny re.ason, exc~pt :
r. 1/
,, ... 1,.. .Jii,hwith .. the.: express consent of .the spouse; or
' (a) 'x' is found in possess•ion °0f s.tol,~n .goods' .so_on after th~ (b) in relatoin to any offence alleged to have been committed ·
theft. The Court may pres·ume that X 1s either the thief or thr re
b:y ;the s.po.use . against:
 - 194 - - 19.5
. (i) .the ,person , givi,nig ' the evi,denoe; 2.. · If the accused· .ha.s asked for eY.i;dence t<,)\ be given in regard
, (+i) the,!·ascen.dant or descenda,I1it of eHher of the .spouses . . to some fads .falling wHhin the category indicated ::ih ·the pre-
ceding paragraph, ,the Court, having considered in chambers the
nature of such evidence a,~d .. having . heard the opinion of the
NOTE.S
Attorney Genera,! may, whenever it consi.ders th~t failure to admit
such ev,i.dence would gravely prejudice the defence, order that
:. Thi,s. ArticLe, deciares that, subject· to · the two exc;ept-ion·s set the proceedings be ,terminated and tak€ aimy 'other ' measures pro·
out ,therei,n, neither the wife nor the hushand imay g,ive evi,dence
against each othe r. in . regar,d I to: ·any,thing ha.µpening during the ' ·; :· · v,ide.d. fo.r i1n Ar,tide 7:6: ·· · . ·· , ·
ma·rriage. Thi's prohubitfon contiinues even af.ter .:the·..,disso!utloo ..Suon o:r.cler. to termfoaie the proceed1ngs sh:a,tl have the same
of !he .. ma.rr.iiage. :T!he :· .rea,son' behind· this· rule i·s · the protection
of ·the feeling of mutual confiidence which is , the most endearing , effect as ;a. Ju.dgmen,t.:ft0r ·tile :purpose ·of :p,aragraiph 3· oi Article 13.
sola,ce of mar.r-ied liik The two exceptions ;are:
· (a) the .express· consent of the wif,e .or: the :husband, . as the NOTES
case<may :t:,e;
(b) regarding an offence committed ..Qy the wJfe . against the
. ·;husbair.1,d. ·or vice 'Versa · or the· ascerldrunt or ,desoeri·dant of .~: 11 (l) Paragraph 1: Thi,s parngraph was substituted by Article 11
eHher of them. · · t · t of Law No. 8 of 26 January, 1970. It means that evi·dence can-
·. , not be given of ll!ny State secrets ,without a special order .c;>f the
Supreme RevoI.utionary Council. The r,eason for ltiis. is .the pro-
ILLUSTRATIONS: . . tection of the ·int~resfa· of •tile' .S,tate. ·
(2) Paragraph 2: Parngraph 1,-_prohi·b.its tht: giving. of eviden.ce
. (.a) ,x ,and' Y aR husband a,n,d wif.e· living together in a· house. . . r-eg:ar.dii;ig: Sfate s.ecttets ·ib\\r,f ij;f. by this the• d~fence· of an accused
Some stolen goods. ar·e fol;lnd in the house 8!!11d x . is. charged. wiith ·person is gravely -prejudiced, the Court may., ·.after hea,ring the
the offence of receivi.ng. Y, the wif·e, cannof be called to give .' .A_tt.orney G;eneral, order. the termina.tion. of ,pr~t:ee?ings and take
evidence .against.X, . the husband . .<: \ can.sequential rneaisures m . ac.co.r,dan,c·e with Article 76.
(.b) X and Y a re husba,nd a;n.d wife. · X assaults Y and is
charged under Article 439 of- the Penal Code. Here, Y may give
· Suah :an order ,o f :terin'l·iniaHor-i of ;proceedings sh·aFI be equiva-
lent to a judgment for the purposes of paragraph :3 :~ Article
evi·dence against X. 13. The effect of this has alrea,dy been . discussed .in Note (2)
under .Ar±uile 112.
Article . 174
State secrets Anficle 175
Jud'ges as witnesses
1. · Except when a' spe·cial onder is given by the Supreme Revolu-
tionary Council, ev-Ld~I1Joe,.may not be given :
J. No Judge shall, except upon the sp,ecial order ofthe Supreme
(a) of a.ny political or military secret of t,h,e State; or Rev-olutionary CouncH or tlie Supreme 'Court, be compelled to an· ·
· swer any questions as to : ·
. : (b) of any ·other . ma1bter w.hic h, iif .::discfosed, ' m;i,ghl preju- ·
dice ·: · · . (.a)... hi,s o.wn ooncj,ud iR ,the exerdse· oJ bLs judicial functions;
or
(i) . the ,security o[ the State;
. (,b) an~thing Whio~ e:ame. to h,i~ ~ruowleqge by reason of his
(\.i) .foe\ pql.Lti,cal. interests, c!,bher.1in,tet1nal or external, of ,,.
i of.flee,
i' the Stale. ··
i · (As ·amended by Article 11 of Law.No . 8 ,of,. 26.1.1970). (:As.;amended';.by Article 12 of Law No. 8 of ?6,1.1970).
 ;,,:;J .-

- 196 - (2) Although this Article. does not. say so, the Information In
question must relate ~o the commission .of. an offence. It ls Im·
> ,·. • The proylsions· of the:· .preceding· paragraph shall also apply· portant for the detection of. crime tha·t · those persons through
:o whom the detection is made should not be unnecessarily ~.is~losed.
. ~· ..Assessors.
.. ' . ' · ·
Ui:iless this is <lone, no one would come forward to give such in·
formation. . ·· ·
. NOT.ES ..

1 H. Paragr..a.ph,:Lof this Article was substitut,ed,1:iy Ar.ti~le 12 of Article 177

.,,,..; ~:o. 8 of 26 January, 1970. This Artide refers fo the priv.i- · Professlorial · secrets
ages of Judges and Assessors as witnes,1;es. It . is a,gainst pub-
..c · pol ;cy to ·compel them to give evidence. of matje~s in whic~
hey have be~n Judicially ehgageq, except uport the s,pecial' order 1. No leg3I practitio.ner shall at any time be permitted, unless
. :· :'. lie Supreme . Revolutionary Coundl or the Supreme Court. with the express consent of his· qlient,' to disclose:
· I'.? ) lt ' witr be . noted . that the priyilege given by this Article is
. } 1<' privilege of th'e witness.:.: If he -waiv,es such privilege or does (a) any matter which . was: communicated to him in confi-
: .1 : object to answer the question, the evidence given by him i•s dence; or
miss:ble; ·. ·
(b) .a·ny matter which. came · to -his knowledge in the course
of his dut~e.s as. a legal practit.ioner.
Artide 176 2. The provisions of the preceding paragraph shall also apply
l~formatio~ a~ 'to .c6m~issioir ~f offences to clerks, interpreters and. other employees ·Of legal pfactifioners .
. . .... ... .
i ·.'Except by speci'a{~rder of the Supreme Revolutionary Coun~.
· j f.' a Cou~i :shaU .not: : · NOTES

(a) compel ' the Attorney General or· a Police : Officer to re· ( 1) This Article prohibits a legal practitio11er or )lis clerks, in·
veal the name of any . person who has given them infor- terpreters and other employees from disclosing any confidential
or other matter which comes to their knowledge in the course of
mation; their duty,· except with the express consent of the client. This
(b) receive fr.om the -Attorney' General or a Police Officer prohibition is based on the principle that if communications to a
legal practitioner are not privileged, .a man would be deter\ed from
information obtained from persons whose names such fully disclosing his· case so as to· obtain proper professomal ad -
officers do not deem it proper to r•eveal. vice. ·
"'
(As ·; ; ~~ded by Article .13 of. Law No. 8 of 26.1.1970) .
ILLUSTRATION:

X, a client says to Y, a legal practitioner, - '«J ha've com-

NOTES mitted theft and I want you to defend me». Y i,s prohibited [rom
disdosing this communi.ca,tion.
· l l) This Article ·was substituted by irticle 13. of Law No. 8 of (2) lt wi,11 be noted that. the prohibition extend~ · .to all times.
··i January, 1970. On grounds of public policy, the Attorney The words used i,n tMs Article are «No legal practitioner shall at
e:ier.al.or a.Police Orficer shall not. be compelled bt a._ Court to . a1ny tiime disclose ..... ». . Thi.s means that the legal practitioner
.'eveal fhe · na.'me ·of ·'any person ·who has given them. 1.nform.at!on, is not allowed to disclose the communication even after the eqd·
i! shall rece:ve such information obtained from persons whose ing of relation as client and legal practitioner. ·
.,.mes such · officers do not deem it yroper · to r.eyeal, except by
;;1eciat order of the Supreme Revoluhonary Council.
 - .198 - - · mg -
Ar.Hele 178 NOTES
· Evidence.
. ·, ·
null and ·void
(I) Under this Aroti'Cle, the competency to ,testify is the rule
and the non-oompetency, ,an exception. The sol·e test is whether
.f a;iJµ,re)1l. ,observe any of the provfaions of thi,s Chapter shail the witness h_.rus suf.f,i,ci.ent inteHi,genoe to ,testi.f y.
render the evidence null a,nd void, and the Cour,t may so deter~
(2) WLth respect to chiLdren, no preci,se ag,e is fixed by law
mtne also on its own motion at any s.tage of .the proceed.ings.
w.Hhi,n whi,ch they ar,e exduded from givLng evi.de.nce. · Neither
ca,n any preciose rule be l,acd down res·pecting the degree of intel-
ligence and knowledge which will render a child a competent
PART Ill wHness.
EXAMIHATIOH OF WITNESSES (-3) As regards the value· of the ev.i·dence of a child witness,
_generally speaking, such evi,den.ce is ,to ~e !a,ken w_ith g,rea,t caution .
Normally; 1'1: shoul,d not be accepted as 1t 1s notonously da,ngerous
Chapter I unless immed,iately available and unless n.arrated before any pos-
siibHiity of coachtng i:S eldmi.nated .
GEHERA~ PROVl~IOHS
(4,) · It is a soun<l rule in practice not to act on the uncorroborated
evidence oJ a child, whether sworn or unswor.n, but this is a
AnHcle 179 rule ,of prudence and not of law a1nd each case depends on its
own circumstances. In Criminal Appeal No. 9 of t 961, Suleban
1

.J;xamlnatlon of witnesses .Elm! v. Stak ( Somall .Law Reports, Hargelsa and Burao Regions, .
1961-63, page 22), the Supreme Court held that the .unsworn tes·
·... , . l!~c.eJ!t as. o.tflerwi,s~ ,p.rovi,d,ed by .la:w, a w:i1bn-ess shall be timony o.f .a child wi:tness can co·nsiitute suf.fident corroboration
examined: · · o.f the unsworn testimon,iy of another chil,d wutness. In this case
of rape, the -compJ,ain·a:nt gi:rl wa-s a,bout 7 years ol,d .a nd the other
(a) ornlly i•n o.pen Court; chHd witness w:as about 4 years old.. The Supreme Court, after
discussing the facts of th.e case and the a·pplica,ble law (which
(·b) in the presence of t,he a,ocus.ed; wa·s Section 11.8 of the Indian Evidence Act then in force in
Hargei·sa and Burao Regi·ons o.f tihe Rep.ublic but whioeh i,s similar
..
.
·{c) .under
. : :• . oath or af.fkrna:tion, '
to paragraph 1 of this Ar.tide), stated :
«Even though it cannot be la·i,d dow,n as a general rule,
Article 180 in most ca!ses in the evi,dence of .a person of t-ender a.ge
there is ,ao mo.hiv:e for false i,ncri.minaition a,n,d, as such,
· ·Persons who may te:stlfy such evidence i,s worthy o-f cred-iit and ca·n also consti-
tute suffkieht corroborat-ion of testimony of other chil-
1. AJ.l persons shall be competent to tesHfy, unless the Court .dren».
considers ·.that any person is prevented from understanding the
questions put to him or from giving rational ,answers to them
because. of : . Ar.ticle 181
Oath and affirmation
(ai) tender year,s;
~b) extr,eme ol,d ag.e;
Exc~pt a.s proviided for i·n pa-ra-graiph 4 ·of Article 182, every
•· (,c} disea.s.e;· whether of body or mindi witness, before giving evi,dence, shall :
2. ' The cfoty. to .teS:tffy ·shall be manda,tory. (a) fake an oa~h in a,ccor,da,nce with his reli·f{ion; or
 - 200 -
- 201 -
(b) make an afflrmali,011, whlch shall he equivalent for all
purposes to. an .oath, if: (c) ·deaf ·and dumb persons shall be given questiions in wri.t·
-ing a;rid shall r,eply in wri.Ung; the oath or affirma,tion
(i) he :does not profess any religion; or
(ii) the taking of an oath is forbidden by the Telig1on
·shall . be ·given in writing a,nd they sha.\l sign H.
pr,ofessed by the person. concerne,d.
2. If a deaf, dumb or deaf and dumb per,&on does not know how
to rea·d or wrute, the Judge shall ap.point one or more interpret·
· Ar.tide 182 er.s, prefer,ably chosen from among persons who ar,e accust~med
.Administration of oath or affirmation t0 communkate . with such person .

• l. An o.ath or affirmation shall be made before the presi;ding NOTES

: Judge. · ·
0

• 2. The oa,th shall be made in .the fol1owi1ng terms: «I swear i:n T~is Article lays down the procedure for admi:niistering oath
the name of God t,o tell the truth, the whole truth and nothing or affirmation to and taki,ng evidence of deaf or dumb or deaf .
b.ut the truth». ·· · and dumb. witness~s. Of course, they are competent witnesses
under Article 180 1f they can understand the questions put to
. :;;~· [An affirmation shall be made in the following terms : «I s.o- them and are capable of giving rational a.nswer.s to them.
!' 'j l~mt'ily declare tha,t ·I wi.Jl teil .the truth, the whole truth and · nolh-
,:,, :{ i'ng )but the truth» .. Article 184
. j:}i <iAhy ·per,s~n ·who ha,s no t; reached the age of fourteen yea:rs Proof of facts by oral evidence ,•
J }a,_t the tim~ ofta,king an oath or m.aking an affirmation shall be .;

:.;~·permitted to . tale ari oath or make an affirmation, provided that

I. .· Ora,! evidence shall, in all cases, be direct, ,that is to say :
· ) / the :presi,ding .Judge shall clearly warn him of the duty to tell
: the truth; the whole truth and ·nothing but the t~uth. · · (a) · H ·i,t refers ,to a fact which coul,d be seen Lt shall be
I
. thl;!. eyidenc:e of a witness who says he saw' it;
Ar,ticle 183 (b) if it refers to a fact which could be hear,d, iit shall be
~ ..-r,r... - . Deaf and dumb witnesses the evi,dence of a wit,nes,s who says he hear,d it;

l. , In order to question, examine or a·dminister an oath or af. · (c) if H ref.ers to a fact which could be perceived by a,ny
firma.tion to a person who is deaf or dumb or deaf a,n.d dumb, the other sense or in any other .manner, it shall be the evi-
following procedure shall be .followed :- dence of a witness who says he perceived it by .that sense
or in that manner;
: (a) deaf pers,ons &hall be given .the oa,th or affirmation
and questions in writing; they ·shall lake the oath or
(d) ii it ref,er,s fo ,a.n o.pinion or to the gr-ound,s o.n ,vhich that
mak·e the .affirmation, and reply to the quesUons orally;
·Opinion is heJ.d; it sha 11 be .the evi.dence of .the person
(b) dumb persons &hall be questioned orally and persons . who hoJ.ds that opinion on thos,e grounds.
'
: ~, .shall reply in writiong; the oath or affirma.ti.on · spa 11. be
·. . read to· thein by the presLdtng Judge, and then g.i-ven to 2. :. :If the oral ev:i,dence refers to 'the existence or condition of ·a,ny
· · them iii viritiing a,nd they shall sig,n it; material thingf the Count may, if it thbnks fit, require the . pro-
ductiort · of such mater.Ja! thing or i,ts iinspection.
 - 202 - - 203 -

3. · Nat,withsta,nding anything . cantaLned Ln thi,s ArNde, opinions become incapable of giving evi·dence or cannot be called as a
witness without undue delay or expense, may be proved by ·the
o.f experts expressed ,in any treabise commonly off.ered for sale, production o.f an appropriate book or document of reference com-
;and the grounds··on which ·such opinons ar-e held, may be prov- monly offered for sale. · '
ed by t,he prod.uoUon of such trea.Uses if the author:
· (a) i.s dead; Article 185
(!b) ..cannot be found; Examination of the accused
Ex,c~pt as other,wi,se provi,ded by law, the provfolons regard-
(~) has beoome inca:pable of giving evLdence; or
i,ng the examination of witneS\Ses shall apply, i,n so .far as a•ppJ.i-
(.d) cannot be ca,11.ed as a witness wLtho:ut an amount of cable, to the questioning, examinatiion and taking of the · oath
delay or ex,perise which the Court regards as unreason- or making an a·ffi:rmatfon of or by the aocused.
able in the circumstances.
NOTES

NOTES All that this Article mea.n.s is tihat an accused person is com-
petent to tes,t,jfy o,n his own behalf a.n.d Ln such a ta,se h\! has to
tak(;! oath or ma·ke aHir.matiori and be · subject to cross- · ei< at1Ji-
( 1) Para:graph 1: This paragr.a:ph .rests on the cardLnal rule . nation .
that ,the best .evidence available must alw,ays · be given. It re-
quires that oral evudence shall, i,n all cases, be direct. EvLdence
is ,direct when it goes· str.aight to establish the .m ain fact in i,s,sue, Article 186
e.g. when a wHness . say,s that he saw X Lnflid a wour.i,d on Y Cases in which evidence may be ,taken in a place
with a knife, that Ls direct evi.dence. .S,up-para,gra,phs (a), (,b)
~n.d (c) ' oftfuis:,pa:ragra,ph .re.fer to facts and lay dow.n that if the other than the Cour~
fact .to be ,proved could be seen , hear·d, touched, tasted or smelt,
the tes.timony .shoul.d be of one who aobua,J.ly sarw it, Jiear.d H,
tpu,ched it,.,tasted it- or smelt i.t. In other wor,dis, the testimony L Except as othtrw,i,se prnvi,de-d by law, if :
shall be ofthe per.son who percei,ved the faiot through ,the medium (a) the President of the Re,public;
o'.f .hi~ qwn ,s~nses . . .
'
'• ,

. (b) the President of the Nalio~al .Assembly;

(2) . Jhe:,aim is to. reject-e~idence which is not direct (whkh is (c) the Pr1me ~i:ruis-ter,
commobly ,kn.own as . «hearsay» -evidence). Hearsay evidence is
s~endhry ev:id~rite ·bf ·a,ny oral statement, e.g~. :when X ··says are requi;red to be cal!,ed as a witness,. the pres,i,ding Judge shall
thal 'Y ;.to.lid. 1h1m .tha.t Z, the a,ocused, has crunmitted murder go to the place agreed upo.n with . s.uch wi-tness in or,der to receive
(fh:0µ_g)J Yis ·nq( before the Cou rt) . X's statement a,bo.ut murder by hi·s evi.dence. · ·
Z:"fs rtqt ba,s.ed·,.on: hi,s own abserv?tion aind is 'hear:say evidence
and :shaJ.J.noLbe ·aidmitted. It i1s the duty ·of the Court to exdu,de 2'. The pr·esi,di·ng Ju.d.ge · shan hear ,th·e eviidence · referred' to i.n
ail ·ora.1 evi,dence vihiich i,s not direct, whether any objection is the preceding paragraph wi:thout the . ·presence .of .th.e publk.
tllken ·br not The maLn reason for the ex.cluslo.n of such 'evi,dence The Attonney General and the aooused ·0;r. his··.<::~un,s.~l . shall .have
i.i (ha.t.·it. cannot be subject to cross-exam ination: · the right to be present arid they must ' be ·i·nfo frned'::o·[' Ji:ie_' .~ate ,
time and pla,ce· when such ev,i,dence'' will b·e he~tr~: .. '. -'..' / :;. ':
· (~) ·· P~ragraph 3; Th~s pa,ragraph i,s an exception to the rule . . ~

enumer,ated in sub-·paragra:ph (d) of par.agr,aph 1. Normal~y, oral 3. . . The provis-ions of the prec-eding paragraph shllll. ii,lso llpply
· eyi:denc,~. of ·!in opunion- ?fl:d. the gro~nd,s thereof shall b~ .g1v~n by· . i,n 'the ca,ses i,n whi,ch a Witness i!S unable to a•ppea, du·e.Jo .. rei!•&ons
tt\e··:pe~son .who : h9lds. suc)1 opinom on those g,ro~nds,. but . the of serfous ·111-health. · ·· · ·
op'infon .of an. exp~rt' who Is dead.· or cannot be found or ha.s
 205 ~
- 204 -
. 4. lnternationa.l conventions and custom shal-1 ap.ply in cases a.nd document,s relati.ng there.to. They are al•so entitled to :.
decl.ine to give evi,dence as ex,pert' witnesses with regard to ;
in .\vhich di,ploma.ts of ~ forei·gn State accredited to the Somali the law of the sending State». · · ·
Republic and· rep,resen.fa.tives of IniternatiDnal Organi,sation,s who
have diploma·tic stalus are called as witnesses. (5) Section 18 of the Co,nvenUon on the Privi,1-eges. and Immu-
nities of .the United Nationis adopte.d by t.h-e General Assembly on :
13 February, 1946 (and acceded to by the Republic 'in, 1963); soe- :
NOTES cifies Lhe various privileges a,nd immu:niJies accor·ded to the· offi- •
cials of the United Nations . Under SecUoi, ·19 of 'the sa:id :Con, , .
· vention, the Secretary-General an:d all Assistant Secr.etaries- ''
. (I) This Ar'ticle is an exception to the general rule that wit- General shall, in· addition t.o the privileges ·and'iminuriities set :out:
nesses come -to the Court to give their evidence. In .the case of in Section 18, be accor,ded in respect of theqi,sel,ves, their. spouces)
persons specif.ied in paragraph 1 (which since the Revolution ,.re- and .mj:nor Ghi!,dren, the privileges and · immunities ac~orded. to •
;·e:- to. the Presi.d,~nt .of the ?u1preme Revolutionary Council)' and di,pl,omatk envoys in accordance with international la.w. · From
those in paragraph 3, the evidence may be recor.de.d in any agreed this it would ap.pear that the Secretary-General and all Assfs-
place. tant Se>cretaries-General of the United Nations. thein;-pouces ·and
minor chil,dre-h may not be obliged to give .evi,doence· as wifnesses .
(2) Paragraph 4: · Thi1s paragrnph prescri,bes that I·n:terna.tional but other officials of the Unite,d Nationis have no such immunity.
conventions and .custom shall apply in cases in which diplomats ·
and representativ.es o,f International Organisations whic,h have
diplomatic status are called as wH,nesses. Chapter II
(3) According to paragrnph 2 o.f Arti.cle 31 o.f bhe Vienna Con- EXAMIHATIOH OF WITNESSES
vention of 18 April, 190!, on Diplomatic Rela,tions (which Con-
. vention is applicable in the Republic by virtue of Law No. 16 of
2/ .June, 1967), a ·diplomatic agent is not obliged t.o .give evi- Se.dion I
dence as a witness. A «di,plomatic agent», according ·.to Article I :' · , . .
of the said ·Conven.tion is the head of the mi.s,sion or a member. GENERAL PROVISIONS .
or:the staff of Uie mi1ssJon having di~lomatic rank.
Arti.cle I87
(4) Article 14 of the V,ienna Consular, Co,nvenHon of 24 April,
1933 (which Convention i1s a1pplica,ble ion the Republic by virtue Definitions
of Law No. 16 of 27 .June, 1967), rela1tes to the Habi!Hy of ;mem-
bers of a consular post to give evi,dence. I.t reads as follows : For the purposes of this Code, unles·s the context provides ·
« I. Members of a conis·ular post may be ea.tied upon to otherwi·se :
attend as wH.ne,sses in the course of judidal or a,dmini.stra- (a) ·the ; term «exa:mination-,i,n-chief »-· shall mean the exam i-
tive proceedi,nig:s. A consular emplo.yee or a member ~f the . nation o-f a \;Vifoess by t,he par.ty _tJhat calls .him;
the service staff sihall not, except In the cases . mentioned
in paragra,ph 3 of this Article, decli.ne to give evid~nce. If (b) the term «cross-examination)) shall mean the exami,na-
a consular of,ficer shoul,d decline to do so, no coe.rc1ve mea - tion of a w,i,tness by the party other than the party 'which '
sure or penalty may be a,p1p.Jied to him .
. call,s him;
2. The authority requiring the evidence o.f a . consul~r ·
of[:cer shall avoid interference with the perfor~a.nce of h.1s (c) ,the t~r,m «re-exaimi•nation )) sha.!l mean the exami:nation of
functions . It may,. when 'possi:bl-e, take such evidence at lllS ::i witness by t.he party wiho called hfm· sUJbsequent-to the
residence or al the consular pos t or ,accept a statement from
1 c~oss-exa1m,i na u'on;
him in writing.
(d) the term «lea,din,g question» s,hall mean a.ny question put .
3. Membe··s o[ a con,sular post are un.der no ?bli,gation to to a witness in such a way as to suggest a reply thaLthe
give cvi,dc1ter. cnnicernin.g mato!ers conn<;c\cd w.rth the exer- party putting the ~ucstion wishes or· ex,pects to receive.
cise of their [.un,ctions or to produce off.i.c1al correspondence
 . - ··206 - - 207 -
I
Article 188 (Hi) If .t,he evi,dence of your own witnesises be unfavourable to :
you (which shouLd always be guarded aga'inist), exhiibit no want i
Order of examination of composure; for there are many minds that form opi.nion.s cif the ,
nature or character of testimony chiefly from bhe effect which it .
· may appear to produce upon the cou,nsel. ·
l .' A' \Vitriess :sha·ll r'irnt ,be examined-in-chief· then, -i1f the
other
_P.a~tf so. desir~s • .the ;H,nes.s may be crosis-exa'.mi,ned; then,
if the (iv) If you see that the min,d of the witness i1s imbued with ·
party: ·calH·n g the wit,nesis so des,ires, the witn.es.s may be re-exa- ; preJudice agai-nst your client, hope but little from such a quar-
. ·:mined. · ..: · · ter ~ unles·s tbere be some fact,s whi1ch are es,s·ential to your ·
cl,ient's protect-ion, an,d which tihat wHness- alone can prove; . eHh- ·
·i). 'i . The examj.naLion-i11-chief an1d the cross-examination shall . · : er do not call him, or get riid of hLm as soon as poss,ible. If the •
~· :·.r;elate to ·relevant fa.cts but t'he cros,s.. examination nee-d not be co:n- ·:.~ opposite counsel sees the bias, he may employ it to your ruin . In :
judicial inqui·ries, of all pos,siible evi-1,s, the worst and the hardest '.
r•J.fihe'd: ·Hi''the ·tacts which ·the witness tesHfied to in his · exami:na- ,, to res,i•s-t is a,n enemy .in the. di,sguise of a friend. You cannot :
'1ffoo-in~diief, ·. . . . . impeach him; you ca,nnot cross-examine him; you cannot di-sarin :
. ' • ; , .: . . .
'.; :3-. ·· The re-exirmi~ation · sh!Jll be directed to the ex,planation of him; you ca.nnot i,ndirectly even, .assail him, and if you exercise ,
the only .privilege that i.s left to· yo·u anid call other witnesses f.o:-
'·.•:rrfaHer,s .referred ·fo i,n crass-exa,niinaHon; a,nd if new ma.tter is the purpose of an ex,planation, you must ,bear in mind thal in ·
_.. int.'io.duced, :with the permission o.f the Court , in re-examination, ste_ad of carrying the war i.n.to the enemy'·s country, the struggle
the other party may further cross-examine upon that matter. ·i•s between sections of your own forces, and in the very heart.
perha,p,s of your own camp. Avoi.d this, by all means .
NOTES (v) Never call a witness whom yo.ur adver sary will be com-
pelled to call. Th,is will af[or,d you the privilege of cross-exami-
nation. Take from your oppo.nent the same ·pr,jvilege it thus gives
The preiceding Ant\cle 'defi,nes the terms «examination·in - to you, and, in addition thereto ; not only .render everything
chi.ef», «cross-examinaUo.n» an.cl «re-examina.t-io:n ». This Article u.nfavoi.lra:ble sai•d by the -witness · doubly operativ~ against: t,he
prescribes i-n Wlhaf or,der they should take place and to what they par.ty: calling him; but also deprive that party :.of.the power of
~houl,d relate. Although the !id o,f inter,roga;tion of witnes,ses 1 counteracting the ef.fect of the testimony.
ei.ther in examination-·in-ch,ief 'or cro,ss-examiriat-ion i.s a difHcult ·
one requirLng yeans of ex-per-ience, Davi,d Paul Brow,n's «Golden (vi) Never ask a question wi't1hout an object nor without bei,ng
Rules» on the subjed. whic:h ar,e acknowleid.ged universally as safe abl•e lo connect the· object ·wHh the case, if objected to as irr:ele-
;.,,~~)1~.s are_reproduced below:- vant.

Examination-in-chief: (vii) Be careful not to put your questio.n " in suGh form l'ha.t if·
opposed for i-nfonm1t·lity, yo.u cannot' sustain it, or at l~ast, pro-
-! dt)· .· H: your. own witnesses are bold, and ma.y injure your cause duce strong reason iti its support. Frequent fa-ilures in tl1e discus-
by p·ertne$S · or forwardness, observe a gravity and ceremony of sion of poin1is Cl'.f · evlidence en,fee,ble your strength in the estima-
ma,nner towards them whic,h may he calculated to repress their tion o,f.the jury, a·nd -greatly impa,ir your hopes in the final result.
. · :a:Ss·ur..a.nce. . ·; (vfrii) Never object to a ques.tio.n p·ut by your adversary wi.thout
,; '('ii') ·. · _if' th.~y are alarmed or di,f,f,i,dent, and thei,r thoughts are ; bei·ng a.ble a.nd di.:=,pos•ed to enforce t,he objection. Nothi.ng is so
evi,dently scattered , commence your exa.mina.Uon with matters of monstrous as to be constantly making and w.ithdrawing objec-
: .. famil iar ,character, remotely connected w,i,t,h the subject of their 1 tions; it indicates ei1ther a wa,n,t of correot perception in ma king
· alarm, or the matter in is,sue; as, for i-nstance, - Where do yo_u them, .or a defiidency o.f rea,sons, or of moral courage in not ma k-
•· ·'iive? Do· you· know the parties? How long have you known them? ing them good .
an.d the like. When you have res.lored them lo theM composure,
, .~nd _the mind has regai,ned its equil\,i1b·r.i-um, proceed ~o the mo.re (ix) Speak to your wHnesis clearly arud d,i,stiJ1dy, as if you were
essential ·features o.f the case, being careful to be miJ,d and dis· awake anid engaged in a matter of interest and make him , also. ..,.,..~. .
', .:t.incl in your approaches, lest you may trouble the fountain aga~n speak .,distinctly and lo your quesllon . How can H be supposed
. ·. from which ·you are to drink . t,hat the Court an,d the jury will be l;nclincd lo Mslcn, wht>n the
 - 208 - - 209 -
:0111~· :- lr11ggl1· s(•t·111s lo IH: wlic!hr.r !ill· co1111sl'I or lllC' wi!11(•ss (iv) 111 ;1 ni111i11al t·spt·,·i:tlly i11 :1 L'.:tpil:11 l'.,1sc, so 1011g as your
:;'1;111 fir~l go lo sleep? cause sta11dcs well, ,ask but ft·,,· questions; and be certain never
to. ask any, the answer to whid1, if agai,nst yo.u, may destro y your
(x) Modulate your voice a,s circumstance~ may direct . «Inspi- cl:1cnt, unless y-ou know the wHness perfectly well, and know that
1·(' th e fearful anct repress the bold» . his al')swer _w1'11 be_ favourable equal!~ well; or unles,s you will be
prepared wl'th testimony to destroy him , if he play,s tr ai-tor to the
, (xi) : Never beg-in be fore you are ready, and always finish when truth, ,a·nd · your expectatioris.
~·011 l1a,·c done. In olher worcts, cto not question for question's (v) An equivocal question is alrno s,t as much to be avoi·de<I
> :ikc.; bul for an answer. and co-ndemned as an eq·uivocal answer; and it always leads to,
or excuses an equ.ivocal answer. Si·ngle.ness of purpose, clearly
Cross-examination : expressed, i,s the best traH in llic examination of wi,t.nesses, whe-
(i) Except in incli.fferent matters, never take your eye from lher ~hey be honest o_r the reverse. Falsehood is not detected by
: \hat of the witness; ih,is is a channel -cif communication from mind cunmng, but by the light of truth, or if by cunning, i-t is l·he cun-
ning of the witness, an·d not of !he counsel.
lo mind . !he lo~s of which nothing ca,n compensate .
(yi) If t.h_e witness ,determi- nes to be witty ~r refractory wi-th
you, you had beUer sett,le the account wHh ,him at fire•! or its Hems
«Truth, false;hoo,d, hatred, anger, scorn, despair, will inc rea,s.e wHh the examination. Let him ·have an op,portuni,ty
And all t.he passions - all the soul Is there». of sati,sfying himself either that ,he has .mistaken your power,
or his own. But in any result, be careful that you do not lose
yo.ur' temper;· anger is alway.s ei,t,her the preoursor or evi,den:ce
'. ;(ii) Be not regar,dle,ss of the voice of the witness; nex,t to,the of assured defeat .in every intellectual ,conflid. ·
\ ey-::- .. !his . is . p:erhaps the be.st inte,rpreter o-f his mind . · ;fhe.
(vii) Li1ke a skilful chess.player, in every move, fix your minid
1 .very design to s-cr.een conscience from crime, the mental reserva-
i Hon of the witnes·», is often ma-nHes,tetl in the tone or accent or upon the combinationc and relations of t·he game - partial and
; crnphasis of the voice. For instance, it is be.coming important to temporary .success may -otherwise end in total an,d reme.diles,s
i ;k 110\\' !lwl the ,• ·it,nes,s --was ·c1t . the corner of Sixth and Chestnut defeat.
· Street al a cerl<1in ti:me; the question is asked - Were you at the (viii) Never undervalue your adversary, bul sta.nd steadily upon
l'. 0 1· :1:-r of Six'.h ? ~·cl Chestn,ut Street, at six o'clock? A frank wit, your guard; a random blow may be just a,s fatal as though it
11t·~,.; 11·uttld ;111~1·. t'r - perhaps - I w;is near there . Rut n wi!- were ,directed by the most consummate skill; t.he ne,gligfnce of
11e~s wl10 ltacl been !here, desirous to conceal the fad, and to de- one of.ten cures , and sometimes rencler-s effective the blunder of
fl'at: voll r object, speaking to the letter rather than the Sif)irif of :,· .
another.
't!1e ·inquirv woulct :a-nswer - No; ,iJlthough he · may have. bee:i (ix) . B·e rnspeotf.ul to the Court a~,d the jury - kinid_ ~o your
,,:ftliin. ;1 stone's throw of lhe , place, or i!t the very place within coll-eague · - civil to your antagonist; but nev.er sacrifice the
ten .:ininutes oft.he time. T,he common aHswer of such a witness slightest principl·e .of duty to an ·overweeni·ng deference towards
would -be I wa,s hot at the cor-ner at six o'clooek. Emphas.is upo-n eHher.
both: ,,;orrl,s plai·nly implies a men:tal eva.s.i-on ?r equivocation , an,d
gi{es rise with .a skilful examiner to the quesb,on: «A,t what hot~r.
wc :·c .vou at the corner»? or, «At what ·pla,ce were you at six Artide 189
o·ciocl~? And in nine i-nstances out o-f ·ten it will appear, that the Refreshing memory
witness was at the plac,2 abo·ut the time;' or a:t the time about the
ph·e. Tliere is no scope for further illustration , ~ut be watchful
of the voice, and th.e prindple may be easily applied. . I. A witness may, while under examinat ion an,d wHh ,the per-
rnis,si.on of the Court, refresh his memory regarding ma.tiers about
(iii) Be mild with the mild - shre,ve.d with the.-.craft~ - con-
fi,c!ing with the ho.nest -. i:nerdful to the young, the frail, or the whkh he ·is bei.ng examine-cl, by referring to:
fearful - rough to the r.uff1.an. anrd a th-unid~rb?lt to th~ ilar. But (a) any wrHin.g mad·e by himse'lf:
in all this, never be unmindful of your d1,gn1ty. ~nng to _bear
' :-II the powers of your min·d, not that you may shine, but virtue (i) at the time of o,ccurre.nce of the event concerni,rig
may triumph, anct your caus·e may pros.per. which he is questioned;
 - 210 - - 21ll. -

(ii) so soon a.f.ter the occurrence of the event tha,t t:he permission of the Court, refr~h 1hlis triemory .by ref~rrin.g. to pr~-
Court considers hkely that the transaction was at fessional treatises. For example, a doctor may, while giving ~vi-
that time fresh in his memory; dence, reh:esh .his memoqy J~y .-r.efer.r.ing .to 11.p.prQ-P,r.ila.te medical
b.oaks .on wh.ii'h.his q.pinio.n,.on.a .,parHcular ,point is· b~sed .
(b) any such wri1ting' ma,de by an-0ther person an:d r,ea,d by
the witness w,ithin the Hme aforesa iid, H, when the witness
rea,d it, he knew it to be correct; . 1:A~tide 190
'P.r.oduction:,of. -doc'uiifents
(c) -profes.sion al trea·tises, if the witness iiS an expert or a
technical cons.u I.t an t.
A witness summo.ned,t-O-.'Pt6ciuteta .tlb:(:ument or writing shall,
2. · . Whenever a w,i,tness is permitted to refres,h h'is memory by. if it i:s in hi:s possession . or power, produce H before the Court,
. referring to any document or wrWng, he may, with th'e permi·ssion ntltwUhstiFtd1tr-1,g Ja",riycd.bje<1tion:the!te·:mra1n;!Jettb Its :pnw.®iian or
: of. lhe Cour,t, refer lo a copy of :s·uoh document or .writing if ,the . admis-slbfli:fy. 'The va%\i'Hy 1()1 any -such J6b-jecfior1 ·~frail 1be ·de-
: non-•pr~tjuction of the ori,gi.nal is sa,tis.fa<:torily ,~ccounted for. cittle;tl :.hy 'the 'Court, ·anid ' for 'thi,s :pu-r;po:se· .tire "Cou'ft ·.may :
A
\ 3. •· ·wit.~ss :!1!ay al'.so tes,tify tci f aots men Honed in any such -_~a) '1m,1pec:t ,su-ch &i:cu:m-e~·t in ~1rs:mb·ers·;
.. \ doe;i.lµient'or writing .as is men,tion~d in this Adicle, even though ·
' he has .no' sipedfiic . recollection of ,t,he facts th,emselves, if he is 0) ' bi'ke ofher _evi.dence
(1 to en·a.t:ile 'fhe ·Cour'.L:t.o .aeterfJ?lne
:sure that the .facts were corredly reconded in the ,docu:ment. Hs ad.missihili,ty;

'. 4. Any docu-~ ent or writing referred to under the provisions (,c) order the translation ,of ,the document, arud in such case
of thi:s Art.ide shaH be produced before the Court and shall be may qr,der the tran:slator to keep the content,s secret.
:shown to the o,ther party, H such party so ,desires.

'Section 'B
NOTES
.EXAMlNAT.ION OF A W.IJNESS .BY THE
:(!) ·Paragraph 1: Or·dinar,i,\y a wi.tness depos,es to fads from -cRAR:r.:Y :cAI:;:IJIN.G HIM
:his recollection but memory fades and it is therefore very neces-
sary that he ,should ,be allowed to as s.i,s t hi1s memory by looking
at any wri.ting confai•ning a.n account of them. B1ut before thjs Article 191
js permi,bt.ed by the Court, the followirig condi,tiorus must be ful-
fil led:- Prohibition ,on, le-ading questions
(a) the wriLing.. musit have been ma,d·e by the witness himsel.f
or if ma,de by another per·son a111d read by ,the witness, I. 1~ircf-lrig •-qu!estfon·~.1sh·~11 .•not ifre ·~~'d In ·an ·~ii'l1iin·a-t,iqn,-fo:
he . (wJt.ness) knew ,i,t to be correct; c:htif 'o'r :.l:r.r 4
a·1'.e:eirn:rutinitfon· .exc1;1pt 'Wl:th·'hie ·. pe-!'ini$:s-i:e>n_:o'('the
(,b). a'ny -such. writing . must have been ma.de contempor.a- Count. · ·
-.i neously, that is to say, at the tiime of the occurrence
·.. of the fact or so soon 'after Hs occurre·nce that H was . 2; The·i:~omt rmtly ip~r,mH l\eaidiin!f questl~ns :m,ex:antlrtailon.i!fl-
i, fresh in the. :witness's memory.
chicf and .re-examination only as lo matters which arc introduc- \
\(2) ,u11,uer s-uu- 1;uragrapoh ·(~i oL paragra:p~ 1,. an ex·per~ or a tory "O'r ·andi'$1}tlfo<l or ·which. l;iave, In .'its 'Op!nlon, '.been ·atr~a·ey,J I
I
~echmcal consultant may, while under exaimi,natio.n and with .the SUHiclenily I pr.o,\(e-0,,. ' ' , , , . ,' .. ·: ' I
\
.c_,T - :.::10 - -

- 212 -
truth . The Court under this Article has a wide discretion lo per-
NOTES mit a party to cross-examine his own .witness:
J (a) when his .temper, attitud~, _demeanour, b~ar_ing, e_tc.,
i A «leading question» is defined i,n sub-p-a.ragraiph (d) o·f in the witness-box show d1sttnctly antagomsitc feeling
I Article 187 as a question which directly or indirectly suggests a or a mind hostil~ to the party calli.ng him; or
' .. , reply which the lnter.rogator wishes or expects to receive. This ('b) when concealir.g his true sentiments he does not exhibit
Article prohibits such questions in examination-in-chief or re-ex- any hostile feeling, but makes statements contrary to
I . amination, ex'cept- with the permission 'of the Court. However, the what he knows and was called to prove or whaH'Je had
! Cqurt may permi,t.J!;!ading questions in such examination in mat-
ters which are introductory or undisputed or alrea,dy established.
-deUberately t-0ld before and by· his mann~r . of· givi.ng
• I
ev~dence and conduct shows that he is·. si.tppressl.ng .. the
tmth, or that he is not desirous of giving evidence _fair.~
ILLUSTRATION:
ly and telling the truth to the Court with a view to help
the other party. ·
: · X· is. on \rial fdr -causing hurt .to Y. In his ~xamination-in-
chief, Y cannot be asked «Did X hit you on the hea.d with this SeoHon III
«budh»? · This \vould be a leading questi-0n. However, in the exa- ' ;

mination-in-<:hief of a Police witness who arrested X in the aot EXAMINATION OF A WIT~ESS BY THE OTHER PARTY
of, causing 'hurt to. Y, he may be asked leading questions. which.
a r'e · merely of introductory character, such as, «Are you a Polke Article 193
Offic~r so .arid'· so»? . «Were. you on duty . at. so and so plac·e at
·such and such time»? . · Admissibility" of leading questions
i!.
I ·. Leadi,ng ques,tions may be asked in cross-examlnation'. :
t
Article 192
..... .
Examination of a hostile or unwllling witness NOTES

The. Court, when it is satisfied that a witness is hostile to, or I,t will be noted that the prohibition contained in Article 191
· is · unwilling to answer the ques.tion.s of the par.fy which called relates to lea·ding questions in · examination-in-chief and re-exa-
. i him, inay at
1
its
di,scretion permit the party which called the wit- . mination only .but not in the case of cross-examination. The rea·
son for this is that a witness has a natural bias Jn favour of the
· . n.ess to puf any questions to the witness which mighit be put in party calling him and will be too ready to say«Yes» or. «No»: but
. crbss,examination by the other party, in accordance with the pro- · in ,the ·case · of cross-exami-nation this is .not so because the wit- .
vi ~ions of 'the followi.ng
1. -:-, ;·.7-_,, __
•
Section. nes under cross-exami·nation is generally ,aqv:,~rs~ <?.r : at l_e~st
not friendly to the party cross-examining him. The object of
cross-examina,tion being to impeach the aocuracy, credibility, and
i NOTES general value of the evi-dence given in examination-in-chief, the
. witness ma'y be asked leadfog questio'ns .in cross-examinati,on.
( l) . .'I:hi_s Article, in a way, forms an exception to. the rule _enun-
~iated in paragrap~ 1 o.f Article 188 which, inter. alia, states that a . Article 194
witness may'be er.ass-examined by the party other ·tha,n that' which.
called-: him. ·rt gives ·discretion,. to the Court to permit a pady · Cross-examination on a written · statement. ,;
.which calle:d him Ao .cross,examine him iif the witness is hostile or
unw.illitig toj nswer:·quesfons ofthe party whioh called him. :
'. • • r ," " •
A w.itnes,s may be cros,s-exami.ned as to previous sfateinents
. (2°) . Wh6 is an. «h;$tile». witness? The Code doe~ .nof define thfa: ma:de by him in writing or reduced into writing, wHho~t such wti·
expression. A witness Is hostile i:f he tries to injure the case . of · · ting ·being shown to him. or being proved. But H it is 'intended
·the party which called him by prevaricating or suppressing the·
 - 214 - - 218 -

t~,.comniill~tr:,4itn '. µy. tb.e , w.riU:n,g; hi·s.i aitefi:tion : s.h:aU, . 11efor.e: the i} the:.CMri, cu<ler·.s, t:he~wiln.es,s , to an,s,wer in a,c.cord.i:nce w-ith the
Writing can be proved\ tJe•ea lied• to, th0se,,paTts,of:,jt1 vibich,i a,e,,to Hf~i0,1J;S ,of:the: foUowing t ,para-graiph , the · provisions of Article
.¥·us~.f~ilie.'. gur.p1is.e.'. o.f c.onttadic.t[ng:.him. 2QQ, sha.U! a:p,p-ly .
..: ' . ' •. i • . . .'~:· .! ;; . . . .
3. If any such ques·bion relates to a matter not relevant to the
'•,\ • . N Q T E.. S . proceedings and tends only to affect the credit o·f the witness, the
Court shall dedde whether; or,,nottthe-. witness ,shaU be compelled
·eq1 Urn ,a; way, this: Au-tide: is an exeep:liiorr t0:·· the! general rule to answer H. In exercising its discretion, the Court shall have
f~i1~ddiwg :,ali_ruse of:;th-e·cO:ntents. of- a w,ritten: document until the reg:a·li!d~: to· Ure · foJlo,w;ihg: consi:deratio.ns :-
cl.ocUtnenb i<te,f!lf: i.si p,:od.uced:: A'. witnes.s]may.,.be:· questkmed as to
~ ·:i)l;e~tis:w.;ritp.en; sta,tement· for thei frulow.ingd•w.o; purposes:- ('.a'.) , sucll questi.oru; :are-p roper if they are of s·uch na,ture that
(a) if may be to test his memory; and.the .ve_cy ciliject would t:he, frt1ilh- of:'the ,imp.utation · conveyed by them would se-
be defeated if the wr-iti.ng were p.J'aieed' in liis hand before r.iouslY; affect". the op.inion of · the . Cour.t . c1s to credibility
the ques~ions were asked; or of· th'e withe.s,s on the matter .to w:hioh ,he. testifies;
(b)' it may be to contra.did . him; and here irt would be ob-
. . '*;~u-s~y · U'IJf air n-0t; to · gi,ve, him: eiver.yi o•p.p.ert•u.11Hyr of . (h·k sttcil 1 quest.io.ns· a:re• improper· H :
. seeing how t.he matter really stands. .
(-i}·i ,the~imputation· which the,y, convey relates to matters
·SO ·· re.mote, fo· Hme or o.f ' ·s.uch · a character that the
(2) it will be noted that thLs Article deals with contra,didion o.f
.a witness durinyr;ljJ.s~cr:oss..e,carrii inti:<m: 1:iy: hi-s;; previous inconsi,s- ,truth' o,f.: : the· imp.utatfon. wout.d not affect, or w.ould
tent statement. Such a witness shall be informed -0f those parts a:H.ecL iil. a. sJ.tgJ,t de,gree, the. op.ini.on. o! the Cour.t
of hi·s,, sit,aj·~t1it. wbi.cb.. : are, to. be.. used.· to. cout.cadicC him. as. :to , the .. cre.dib.ii,Hty of. the wHness on the matter to
He cann-0t he disbelieved without his a.ttenti-0n being drawn to which.·, he, testifies;
parts of his statement which appear fo be inconsistent with his
testimony. , This is to enables hJ mto, explain ,any discrepancy ir (iii,),: .U1ere.· is , a grea·t dispropor.tion between the impor·
ir11Consistency. ·
tane.e• of the iii11,P,utation ma.de a,gainst the witness is
.· ... :. ch.crrruoter and ·the imp.orta,nce of hi:s evi,d.ence .
Artide, l 9fo
.. ·· ::· The· Court may, if i,t ·deems fH; warn the wjfoess th.at he is
· .Ques:tions. .lawJitl in _cross~examio..atfon.
not obliged to a-nswer a question .
· IL·. · When:1$wjin.eas :is• :cross,examined; he ·rna1:b.e,•aske<l ·:any, ques- 4·; No such q1:1,estion: as is referred to ,in .the precedhtg paragraph
.·tloh
: i..'1
w,hicW tends•: · ·
-~ ,. •• • •. . • • • •. . . crngl;!L t0 .. be. asked. . Linle~.s. the . per,sor-t askfog it has reasonable
:' :','; / .· ('1. .1):, tn. te~t:his veraciity;
gr-0,und.s,, for, . thinkingr. tha.t the imputation which is conveyed is
.. w:eU-fou.nded~:
{:b~! to , diseo:Ver., who he· is; and.: what is , his, position; in... !He;
(c) to shake his credit, 5.. A- Count ; .

although t.he an.swer to such quesUon mi,giht tend directly or in- (a) may forbi,d any ques,tions or inquires which it regards as
directly to1 ,expose hian- to penal proceed111gs· or to civil action for i,ndecent or s.candalo.us, althoug,h s,uch ques,tions or inqui-
,damafi{e~. ries may have; some bea.r·ing ·on the questions before the
' ~ : ... !fi ".1. :. Cour,t, un.less .they relate to fa:cts in issue or to matte rs
2'/: '1.£.1 ariy,.sucfr qyestion as: asked ' in: aocor,da.nce !W.itldhe: prnced·
•
1
ne-cessarY: to be known in order to determ ine wh ether or
'· H>g-i-paragrilipru r;~aJes ;to, a: matter relevant to the, pr;.oceed.ing,;,. or noi the, facts in, i·s.sue exls-Lod;
 - 216 -
-- 217 -
(b) shall forbid any questions or inquiries which appear to
it to be irntended iolely to insult or to ·annoy·or which, improper to ask a woman witness i·n a case of theft whether she
though proper in themselves, appear to the Court is a common prostitute.
needlessly offensive in form.
(~) .. 'i>~~~-gr·a~h 5: This paragra.ph qeal-~-~~i,th indecent 'or scan-
dalous· questions and insulting or annoy.ing quest/ons. In the
N o· T E S c.~se of. the former, the Court may forbid any such questions un-:
1€ss they relate to facts in issue; .but in the case of the latter, the
(I) Paragraph I: In paragra,ph 2 o.f Ariticle 188, i~ has been siiid Co~rt shall forbid aTiy such questions whkh are inten<led solely ·
that cross-examination shall relate to relevant facts but this to rnsult or annoy the "."itness. The Court therefore has complete:
para.graph gives the cross-·examiiler a wider power of interrogation. power to protect a witness frorn molestation by being impro-.
perly cross-examined.
A witness unde.r this paragraph may he cross-examined not only
as to the fads· of the case but als·o as to matters not material
to the issue, with ,a view to impugn his credibility ,and thus
shake his whole testimony. Article 196
(2) The object of cross-exami.nation i,s to impeach the accuracy, Evidence to contradict answers to questions testing veracity
credi·bilHy and general value of the e-vi,dence given in examina-
tion-in-chief, to sift the facts alrea,dy s,tated by the witness, to
detect and expose discrepandes or to elidt suppressed fads which L: , No evidence :shall be given to contra,did any answer given :
will support the ca,se of the cross-examining party. The exerci:se by a witness to questions put to him wHh the sole lnten.Uon of;
of this right is justly regarded as one of the mos,t ef.fiicacious tests, shaki~g his .c.redi.t, except :
\\'hkh the law has devised for the discovery of truth . By means .... .. .: .

of it, the si,tuation of the witness with respect to the parties and to (a) if the Court permits; or
the subject of the case, his .interest, his motive, his !inclination and - .i
l ..
,' • .
, '
.. .
•

prejudices, his character, his means of obtaining a correct and cer- .:. : .(b) : if :
tain knowledge of the facts fo which he bears testimony, the ; ·-
manner in which he has used those means, his powers of discern- (i) ,the qµestions refer to any previous convictions of.
ment, rnemory and disdptine are all fully inves,tigated and ascer- the witness for any offence; or
tained and submitted to the consi,deration of the Cour,t· which has
the opportunHy of observing his demeanour and o,f determining (ii) the questions tend to impeai;:b_ hi.s impartiality.
the just value of his testimony.
(3) Paragraph 3: This paragraph lays down that H any question · 2. In the cases referred to in sub-paragra,phs (a) and (b) of the
in cro:-s-cx aminat:ion under paragrap,h 1 relates to a matter not preceding para.graph evidence t-0 contradict him may be given.
relevant to the proceedi.ngs and tends only to affect the credit of
the wiitness , it is for the Court to deciide whether or not the wit :
ness shall be compelle·d to answer it. The Court has the discre-
tion to allow the ques,ti0n or to exclude it but this d,i,scretion must NOTES
be exeroised judiciously and not arbitrarily. Sub~para.graph (a)
describes what are proper questi,ons to be allowed an,d sub-para-
graph (b) ex,plai-ns what are imp.roper questions which may not be . The ·pr~ceding Article ,deals, inter alia, with questici([ls' that
allowed. ma)' be. asked from . a. wHness in cross-exa,niination to ·shake his
credit To some of ·such questions he may . not be excused from ·
answerdng and in others he may not be compelled to answer.
ILLUSTR.ATION: T,his Artiicle declares that when a witness depos-es to what affects ,
only his credH, no ev.i.dence to contra did hi,m can be led . with
Jn a case 0f carnal violence, it woul·d .not be improper to ques- · the sole intention of shaking his credit, save . fo~ ·the exceptions ·
lion the pros·ecutrix as to her acts of immorality n-qt t}nly with the sefvmufthereiri; Of'.course, when a_wi.tness deposes .to fads ,whk~· :
accused b-ut with other persons as well. But it would be most · a:re: r.eleva,nt, · evidence m·ay he given in contradiction <H ·what hei
ha.s: ,stated.
 - 2~8 - - 219 -

IU;US'f.RATION: Under -thi·s Article, a p.arty ca-n impeach the credit of his oppo-
nent's -wi.tnesses as a matter of · right, but as to his own witnesses,
il can be done only with the consent of the Co.urt. The credit
On a charge of carnal violen,ce, ,the prosecutrix may be con- of the witnes,s may be impeached unrder thi,s Ar.tide in the follow-
hiari:f-ietetl lf ·-sire •tlenies . previous ·co.nnecti-on ·with' fu-e ·aecus-e\:I, for ing ways:-
lliat ·may -be•tnMe,Uantn -.consent;' b1.H she ·can116t b'e··contriidideWH
sh_e d'ert1~s-·com1eciion 'wHh 'other ·men, ;for then %-e ·:question .orily (a) evidence of general reputation for untruthfulness;
goes.·to ·he'r·'eharacter 'and cr~di•t. (b) proof of ac-ceptance of of.fer of bribe, ek.;
(;c) proof of former inoonsis-tent st~tement~; , .· .·
·Art-icle -197 (d) evidence -of general immorality of pr-osecutrix iit ca:se bf ·
Impeaching the credit of a witness crimes or attempted crimes ·of s·exual vi-Olence (Artic!bs
398 to 401, Penal Code) or against mode~ty and sexual
honour (Artkles 402 to 410, Penal Code), · •
The cred.i,t of a wJtness ,may .be . impeached by ,the par.ty other
than the parly callin,g him, or, with the e,o.nsent of the Court, by (2) Evidence of g.eneraJ.-reputation cif untruthfu.lriess: In or.der
the ·.party •w,J:m :rrais cEil,led ;him: to impeach the oharacter of a witness for ver-acity., · witnesses ·rrH\Y
-be called t-o prove t-hat his reputation is such that they would not
(a) by the evidence of persons who testUy that they from believe him on his oa•th. Of course, s,uch witnesses should · testi-
J'ith"E:lrr p:ersona,l 'lmowle:"dge of :the ·wl,trres,s 'b-eHeve htm to fy from their personal knowledge of the witness in question .
·be ·unworthy of· credit; (3) Proof of acceptance of offer of bribe, ·etc. : T,he ~redit of a
.. witness may be iimpea·ched on the groun,d that his· .evi,dence was
(b) by p.roof that the witness, in order to give his eviaence: obtained by corrupt in,ducemenit. I.n other words, in or-der to give
his evi,dence, he has eHher caused or induced another person to
(i) has caused or induced anot,her .person to give, qr give or of.fer to give to him or to another person any bribe .or
offer lo gi-ve, lo him or to a thi-r,d person •any>-br,itbe other corrupt inducement, or has accepted the offer of such bribe
or .other .corrupt inducement; ·.or or o\.her in.d·ucement.
(ii) has accepted the offer of s,uch 1brvbe or o.toher corrnpt (4) Proof of former inconsistent statements: A wi-tness may
inducement; be discredited by proof of his former statements i.nco.nsi,stent with
his present testimony. Article 194 whi-ch also refers to dis·credit-
_(c) by proo:f of former sfatements, inoonsiistent w,i,lh any p-art ing by former contradictory statements is a,pplkable to statement
•df h!rs, ev•iiden:ce which i,s 'liable 1to 1be •wntnr.did'etl;
1 made in writing or reduced to writing with which. a witness is
confronted in cross-examination; but under thi.s . Article, the for-
· (,d) when a man is' prosecuted for : mer statement may be oral .
(i) a cr.ime or aHempted crime of sex·ual vfolence; or
(ii) .a crime or attempted crime against modesty or sex- ILLUSTRATION:
ual honour,
X is cha.rged with Y's mur,der. On X's trial; Z, a witness,
~n:~ wmn,m:.over 16 ye·ars df-ag-e, ev_i-den:ce'maytbe ·-giiven to·show says tha:l Y, when -dyi-ng, declared that X had given Y the wound
tll.i.J :the ,voman was cif .generally immoral oharacter. of whioh he died . Evi,dence may be produced to prove that on
a previous occasion, Z had said that the wound was not given
by X. ·
' ·' ,•,
NOTES (5) Evidence of general immorality: In cases of sexual violence
or against mo,desty and sexual honour, evidence .may be given
~l:)1 :: cAr.t~Le :L95 :deals, ..ini~r ,alia, ~itl~ i,~ea1:liiln~ -the··.cr.etlrt·.;.Qf.<a that th-e victim (a woman of over 16 years of age) is of general-
w1tll1'l!HS ·in . croS5~xaminat1on. .Th1,s ·Article •·deafa \W!tth ,another ly irnmoral character. 1t may be shown that her genernl rcpu-
mode of impeachi,ng crcc.lil, vi1. ., by giving ·independent 1-e,\lld&nce. lali@ is lhal o[ a prostitute or llinl she has the general reputa-
 - :2:.::1 -
- 220 --
, (2) For the same purpose, the Court may order the production of
tion of going about and committing immoral ads with a number documents or thi·ngs or inspection of places.
of men. Such evidence would be a.dmissible to prove that s,he
yie'.ded willingly to the alleged immo.ral ad of the accused. (3) Although thi,s Article confers upon a Court extensive power
of interrogaUon, y~t such a power is to be exercised within
well-recognised li.I11its by maintaining judidal calm an·d detach-
ment and without usmping the functions of counsel. It should
Section IV be invoked only with the object of discovering or obtaining pro-
EXAMINATION OF WITNESS BY COURT per proof of relevant fa.cts. That being so, it cannot be said
that the rules of evi1dence in the Code relating to relevancy or

Artie\• 198 _,.-- \ lf

Discretion and powers of the Court .
1,~ <;. a.dmissibi!Hy may be disregarded. The Court can ask any ques-
hon, relevant or irr-el•evant, a•s it considers necessary to elicit
any relevant or material evidenoe.

Section V
· The Cour.t may, in order to discover or obtain proper proof
of ~elevant facts: CORROBORATION

(a) ask any questions it pleases, in any form, at any fime

except for the matters provi,ded for in Arti.cles 173, 174, Article 199
175, 176, 177, 188 and 200, of any witness or of the Accomplices
parties about any fad relevant or irreleva,nt;
;':· .
: ~. The persons who have parlicipated in an offence may be
;. ··.
'i •••
', (b) . order the production, or ins,pection, of documents., things ) wi,lnesses in -the proceeding,s.
or places, and the taking of any measures which it cie~ms However, .the Court shall not conv.ict an accused person on
! .; fit and proper to dis.cover or obtai.n proper proof. lhe basis of the t,es.timony of an accomplke unless such testi-
I
mony is corroborated by other evidence.
NOTES
NOTES
; (I) Like ·Artfole.J J8, this Article also gives extensive powers to
la Court. for . the purpose of getting at the trut~. Whe.never a (I) This Article defines an accomplke as a person who has ·
· :court finds that the proceedings before it have not been con- «participated in an offence». It further declares that he is a
·ducted in a way as to unfold the truth or that obscurities in the competent witness though an accused person shall not be con-
. :evidence .should be made clear, it is not only its right but a duty victed on the tesUmony of an a,ccomplioe unless such testimony
:·to prob.e further into matters that H deems important to get at is corroborated by other evi.dence. . ..
!the truth ... , Fodhis purpose; the Court may, at-any time, ask from
:any witness : or · party any question in any form about any fact (2) AHhough an acc·ompliice is a competent witness, no one shaU i
.relevant or irrelevant; except for matters provided for in : be convicted ci.n the sole ev,i,dence of an aocomplke. The reasons
for hol·ding acoompl.ice eviidence to be untrustworthy are: · I
.I
(a) Article 173 (One spouse as witness .agai.nst the other); (a) becaus,e a.n aocomplice is likely to swear falsely in
antler to s.hi;ft the guilt from himself;
(b) Article 174 (State secrets);
(c) Article 175 (Judges ,as wi,tnesses); (b) because a·n accomplice being ·a parHcipator in an
off.ence, and consequen.tly a,n immoral person, is likely
(d) Article 176 (Information as to commi'Ssion of offences): to disregard the s.anction of a·n oath;
I
,....,..~.!. (e) Article 177 (Professional secrets).
 ··- 22·1 ---
- 225 -
The new Code lays down that the accomplke evidence should
be corroborated by some other evidence. It is not required NOT ES
that · the accomplice should be conf.irmed in every detail. of
the crime, for, in that case, the evidence of the accomplice (1) Under Articles 194 and 197, former statements of a wiln~ss
would not be' essential to t,he case; it would be merely con- may be used for the purpose of contradicUng him. According lo
firmatory of another and indep·endent testif!!?ny. Al_! that this Article, former statements of a wi'lness may be proved to
is required is that there must be some additional ev1_dence corroborate his present testimony. The former statement may be
rendering it probable that the story of the accomplice is oral or written but it must:
tr.ue and reaso,nably safe to act upon».
Artidc 200 (a) relate to the same fact; and
Questions · tending to corroborate evidence or relevant fact (b) have been made at or about the time w.hen the fact took
p\a.ce, or before any authority legally competent to in·
When it is necessc1ry or desirnblc lo corrobornte the evidence vestigate the facts .
of any witnes,s and that witness gives evi-dence of any relevant
fact, he may be questioned as to any other circumstances which (2) Or,dirtarily, a wifoess cannot corrobor-ate himself because
tie observed at or near the time or place at whkh such relevant corroboration in its true sense must come from an independent
source. However, this Article provides for seH-corroboration on
fact occurred, if the Court is .of the opinion that such <:ircumstan-
the principle that if there is consistency between the previous
ces, if proved, would corroborate the testimony of the witness as statement and the present testimony of a witness, it may be consid-
to the relevant fact concerning which he testified. ered a · ground for believing him. Generally, the statements
ma,de imme,diately on the occurrence of nn event contain truth,
NOTES for no time has ela,psed for concoctions to creep in. Similarly,
statements solemnly made before a lega\.ly competent authority
This Article permits lhe Court lo allow a witness, who has bear the impress of tr.uth. Such statements are, therefore, admis-
testified to a relevant fact to corroborate his testimony by depos- sible as corroboration. Of·course, the value of such corroboration
ing to any circumstances~.whkh he observed at or near the time will depend on the peculiar circumstances of each case.
or plac·e at which . the . relevant fact occurred.
'
ILLUSTRATION: ILLUSTRATION:

. X, : Llll accomplice, gives an account of a robbery in which lie The question is whether X has committed carnal violence
look .part. He describes various incidents unconnected with the against Y. The fact that immed,iately after the event, Y told her
robbery .which occurred on his way to and from the place where mother that she had been ravished by X may be proved to corro-
it. was •committed. Independent evidence of these fads may be borate her evidence at X's trial.
gi ven 'in order lo_· corrcibcirate his evi.dence as to the robbery itself.
.. \' Article 201 Section VI
..
! Former statement of witness as corroboration EVALUATION OF EVIDENCE AND DECISIONS ON ·. .
In: order to co'rroborate the evi,de.nce of a witness, any former ADMISSIBILITY OF EVIDENCE
s'tatement relating to .the same fact made by such witness:
(a) at or about the time when lhe fact took place; or Article 202
(b) before any .authority legally competent lo investigate the Court to decide on weight of evidence
fact,
The Court shall determine the weight to be given lo the e,·i-
rnay be proved.
clence admitted.
 - 226 - - 227 -
NOTES either permit evidence of the first fact to be given before the
second is proved, or require evidence to be given of the second
(I) This BOOK (Ill) of the Code !.ays down certain ' rules fact before evidence is given of the first fact.
about the admissibility of evidence but there are no rules =as to
!he weight lo be attached lo the evidence when admitted. This Article 204
is so because proper appreci,ation of evirdence is a matter ·of ·ex-
perience, common sense and knowledge of human affairs. The Improper admission or rejection of evidence
law therefore has left it to the Courts to decid,e whether the evi-
dence should be believed or not and, if believed, what weight The improper a·dmission or rejection of evidence shall not of
should be attached to it.
itself be grounds for a new trial or the reversal of any decision
i,n any case, if it shall appear to the Court before whkh such
(2) Although ii is for the Court to decide in the circumstances objection is .raised that:
of each case as to what wei.ght should be attached to the evi,dence
of each witness, the followi·ng consi,deration:s may be borne in (a) independently of the evidence objected to ·and admitted,
mi-nd in weighing evidence:- there was · sufficient other evidence to · justify : the
decision; or ·
f ~
(a) the demeanour of a witness;
(b) if the rejected .evidence .had been reGeived, . it ought : not 1 • •

(b) his intellectual ca.pacity; to have varied the decision.

(c) his slatiO'l1 in life;
(d) his interestednes-s; NOTES
(e) his motive; (!) This Article declares that a decision of a. Court shall not be
(f) consistency of his testimony; disturbed on the ground of improper admission or rejection, if
inspite of such a·dimission or rejection, there is sufficient mate-
(g) conformity of his testimony with experience; rial in the case to justify the decision. In other words, technical
(h) conformity of his testimony with collateral circum- objections will not be allowed to prevail, where substantial just-
stances; ice appears to have been done.
(2) It will be noted, however, that this Article talks of the Im-
(i) discrepancies in material portions of his evi·dence; proper admission or rejection of evidence. It will have no appli-
(j) the admitted facts; cation if there is an illegal admission or rejection of evidence.
(k) on whom the bur,den of proof lies; For example, if the decision of the Court is based upon a confes-
sion which has been admitted in violation of the provisions of
(I) !he necessity of corroboration in certain cases; Article 150 or 151, this Article will not apply and the decision
(111) lhe effect of presumptions; must be set aside.
(11) \\'he!her the best availnble evidence has been produced. Section VII
GENERAL PROVISIONS
Article 203 .· .. ; ..
Admissibility of evidence Article. 205 i
Incriminating answers ·
I. The Court may only allow evi,dence to be given concerning
fncls \\'hich are allowed by law to be proved in t,he trial. I. A witness is obliged to answer questions pul to him by a
2. If the relevancy of one alleged fact depends upon ano,ther party on any relevant matter and to questions which lhe Court
alleged fact being first proved, the Court ma.y, at its discretion, has ordered him to answer, even if such answer might expose
 - 231 -

BOOK FOUR
APPEALS AND EXECUTION

PART I
APPEALS

Chapter I
GENERAL PROVISIONS

Article 208
General rules

I. The law shall prescribe the cases in which judicial measures

are subject to appeal and shall prescribe the .means · by which
such appeal shall be made. - ·-- •

2. The right of appeal shall be restricted to such party or par-

ties on whom it is expressly conferred by law. ·

3. Only a party hav,ing interest in an appeal shall have the

right of appeal.

4. In every ca-se:

(a) . the accused shall not appeal against a count of the

judgment for which he has been found guilty when he
.has already pleaded guilty to such count iri. accordance
with the provisions of this Code;

(b) a party shall not appeal against an order that pr.o-

ceedings be terminated w.hen such order has been gran-
ted in conformity with, or is a consequence of, any
request of such party in accordance with the provisions
.of this Code;

(c) the Attorney General shall not appeal against an order

that prnceedings be terminated wh.en . the Attorney
General, having been <:onsulted befo.rehand in accor-
dance with the provisions of this Code, did not object
to such order, ..,..._
 - 232 - - 233 -
.• 5. Appeals shall be governed by the provisions of the Law on
Article 209
the Organisation of the Judiciary, except as otherwis.e provided
in this Code. Appeal by accused

1. An accused may appeal in . person or through special re-

presentative. · · ·
a
NOTES

1 I) Paragraphs I, 2 and 5: Artides 10 and 11 of the Judiciary 2. In cases where a ·sentence of death has _been : passe.d, the·
Law deal, inter alia, with appeals in criminal matters. First Counsel who ·defended the accused in the trial may kppeal with-. ,. ·. .
appenl lies t,o the ,competent Court of Appeal and the second to the out any special man,date to do so a.rid even itgainst ·the· wishes : .- .
Supreme Court. We have alr,ea,dy dealt with the composition and of the ,convicted ·person. · · · · ' · ·
jurisdiction of these Courts in Notes under Article 2.
(2) Appeals to the Co.urt o.f ~ppeal : Except _as o!herwise pro- 3. . Parents of minor children ,and the legal<repfe~enlati;es of ..
vided by law, appeals m cnmmal matt~rs .against J~dgments of wards, even though they are not entitled to riotifi.oat:ion of·judg-·/
a District Court and the General Section of a Regional Court ment, may appeal on behalf ·of -such children or wards. ·
. . .
$hall lie to the General Appellate Section of the Court of Appeal I . ..
;ind those against judgments of the Assize Section of the Regio- 4. Except in the cases referred to in paragraph 2 of this Arti-
n,il Court to the Assize Appellat,e Section of the Court of cle, the aDcused may cancel an appeal made b.;r another person ·,
Appeal. Such appeals shall li·e on questions of fad and law. on his behalf by giving notice to the Court that·he does nofwish •
such appeal to be made. '
(3) Appeals to the S~pren:ie .court: Except .as o~herwise pro-
vided by l,nv, appeals m criminal matters a·gamst JUdgments of ; .
/ .. If the accused · i.s a minor or is incompetent, the parents . or
a Court of Appeal shall lie to the S.upreme Court only on t.he fol-
lowing questions of law:- · legal representative shall give consent for such notice!t~ be v,al!.d. i ·:
I -•I ·

(a) lack of jurisdiction or incompetence of the lower Court; 5. If an accused person and other persons permitt~d to di:> ·sf,'.;.; .. .•
(b) violation or erroneous application of legal provisions; ·under the provisons of ·this Article . have each lodgedj an ,appeal, .• .
(c) nullity of the judgment or the proceedings; and one of the appeals is invalid, it will be Viali,dated by the vali-
dity of the other, ~n4 this sha.11 also apply to the gro~nds for .the . .
( cl) omission, insufficiency or contradition in the groun.ds
011 which the juclgrn~nt is based, relating to a ~aterial
appeal. If there 1s any conflict between the appeals,1the appeal ,.
point raised by either party or by the Court of its own lodged by the accused shall prevail. ·
motion.
(4) Powers on appeal: In appe~J,s, . th~ Court .shall decide on NOTES
merits, affirming, modifying or setting aside the Judgment o.f the ' : i
'
lo\\'er Court. In the C·ase of the Supreme ·Court, when the JUdg- . . . I.
mcn t appealed against is set aside, the Court m.ay rema~d the Pargraph . 5: _The ·provisions of this pa:r;1graph · may . be ·. ·
case to the lower appellate Court; or, where no add1bona.l evidence explained by the following illustrations:- · ·
is required, it may decide the c.ase finally.
(.a) X is convicted of causing hurt to Y and sentenced to ··
(5) Paragraph 3: This paragraph state~ that only a party ha:· 6 months imprisonment by the District Court. He
ing interest in an appeal shall have the right of ap,peal. N?w, in authorises his brother~z -to file an appeal before the. com-
a ~'.riminal matter, who is such a party? The -a,ns:Ver to _this will petent Court of Appeal. . Z files the appeal but does not
be found in Criminal · Appeal No. 19 of 1970, Gahir Abdt Dualeh state any specific grounds as required by law. Such :.
v. Aw Burhan Awad Aboker, where the Supreme Court held that an appeal is invalid accor-ding to . Article 21.6. X .
onlv the parties to a criminal proceedings, i.e.,. the State a~d .the decides to file the appeal himself fherein ! he states '
acci1sed, can appeal from a Judgment of acquittal or conv1ct1on. specific grounds of appeal. His app,eal whith is valid
o,ne will vali,date the one filed by Z.
 ·'!;
,,.,

- 234 - - 235 -

(b) If in the above illustration, appeal filed by Z contains (b) the date of such act or judgment;
a ground that X was not present at the time of the (c) the judicial authority that has issued it;
,incident but the appeal filed by X contains a ground
that he caused the hurt in self defence, the latter shall (d) the proceedings to which the appeal refers .
prevail.
Article 213
Article 210
~eceipt of the notice of appeal
Appeals by the Attorney General
I. A notice of appeal shall be lodged with the Registrar of the
1. An appeal may be l-0dged by the Office -of the Att-0mey
Court from whose act or judgment the appeal is being taken .
General or by the person ·who has represented the Attorney
· The notice may also be filed by registered letter or telegram to
General i-n the proceedings, in accordance with paragraph 2 of
such Registrar and shall be presented at a post or telegraph office
Article 12. ·
within the time-limit fixed in Article 214.
2. If the Attorney General or his Deputies, as well as his re-
presentative in the relevant proceedings, have lodged an appeal 2. If the person who is concerned in the appeal is under deten-
and one of the appeals is invalid, it will be validated by the vali- ti-0n, the notice of appeal shall b_e sent or given to the authority
dity of the other; and this shall also apply to the grounds for the detaining such person and that authority shall 1mmediately trans-
appeal. If there is any conflict between the appeals, the appeal mit such notice to the Registrar ·of the Court. from whose act or
lodged by the Attorney General or his Deputies shall prevail. judgment the appeal is being taken.
3. The Registrar shall attach the notke of appeal to the record
Article 211 of the trial, after having rec·or·ded thereon the date on which the
,:··
Appeal by the other parties appeal was received and after having signed H.

Other parties may l?-dge an appeal personally or through a NOTES

special representative.
,Paragraph I: This paragraph requires that a notice of
NOTES Ji · appeal shall be .lodged with lhe Registrar of the Court.from who-
se act or ·judgment the appeal is. beirig filed. In Criminal Ap·peal
Artide 209 deals with the appeals by the accused and Arti· No. 1 of 1966, Hassan Haji Abdillahi v•. State, the Supreme _Court
cle 210 with appeals by the Attorney General. Ordinarily, th~se . held that an oral declaration of the notice of appeal made before
are the .two parties in any criminal proceedings. The reference to · the ,President and the Registrar of the. Court of Appeal and not
«other parties» in this Article is, presumably, to the «injured par- before the Registrar of the Regional Court (whose judgment was
ty» as defined in Article 14. appealed against) was not a valid notic,e of appeal un-der the law.

Article 212 Article 214

Form of appeal Time-limit for notice of appeal

An appeal shall be lodged by means of a notice, which may 1. The time-limit for the lodging of a notice of appeal shall_be :
be verbal and which shall indicate:
(a) 30 days, if the appeal is against judgment, starting
(a) the judicial act or judgment against which the appeal
from the day on which judgment was pronounced;
is lodged;
 - 23b - - 237 -
(b) 15 day s, if the appeal is against any other judicial ad of Article 51 , the notke of appeal shall be deemed to have been
starling from the date on which : made by depositing one of the originals, for transmission to the
(i) such ad was done, in respect of the par.ties present; ac,cused, with the Registrar of tfie Court from whos.e act or judg-
1
ment the appeal is made.
(ii) the parties who were not present were notified . .

2. The Supreme Court and the Court of Appeal may, by deci- NOTES
:- ion in chambers, extend the time-limit for lodging an appeal
again st an act or judgment of a lower Court, when it is ascer- Paragraph l: This para.graph requires that a ; notice of
tained !hat the accused was unable to comply with such time- a.ppeal by the Attorney General shall be notified ·to the . accused
limit for reasons beyond his control. Insofar as applicable, the within 30 days of its being lodged with the Registrar. ' In a case
where this was not done, the Suprell'le Court held the ' appeal as
pro vi ~ions lai d down in paragraphs 2 and 3 of Arti.cle 223 shall inadmissible (Criminal Appeal · No. 20 of 1970, State v.! Mohamed ···-· ..
appl y. Wais Obseyeh).

NOTES Article 216

Grounds of apIJeal
Paragraph 2: Under this paragraph, the · time-limit for the
lodging of a notice of appeal may be extended where an accused i
is unable to comply with such time-limit for «reasons . beyond his 1. The grounds of a·ppeal shall be established by laW.
control ». Jn Criminal Appeal No. 99 of .1967, Abdi Aw Adan Mo- 2. Grounds -0f appea l,: shall be specific; ·l,f :n6t, the appeal shall
hamed v. State, the reason shown in the affidavit of the appeal not be admissible. The grounds of appeal may be included in the
react : notirce of appeal; .otherwise the grounds .of appe:a1 shall 'be pre-
s·ented in writing a,nd signed by the person lodging the appeal or
«That I am illiterate and unaware of .the existing Criminal by the specia.l representative or . defence Counsel, :withi-n the time-
Procedure Code and relevant law ,concerning the applica-
tions of appeal ». limits laid down in Article 214. · ·

I! was held by the Supreme Court that the ignoranc·e of law The parties may submit memoranda explaining further the
was not a defence and it cannot be considered as a reason justi- grounds of .appeal even after the expiration of. the said jtime-limit.
. : ;
fying the extension of time-limit. 3. Insofar as applicable, the provisions of Article 213 and · of
paragraph 2 of Article 214 shall be o!Jserved.
Article 215
Notification of appeal by the Attorney General NOTES

I. A notic e of appeal by the Attorney General shall be notified · We have seen in Notes under Article 208 on what grounds
appeals lie to a Court of Appeal and the Supreme Court. Paras·=:·
to the accu sed within 30 days of its .being lodged with the Regis- graph 2 of this Article requires such grounds to be specific, other- ·
trar who ha s received it; otherwise such notice shall be null and wise the appeal shall not be . admissible. In C'rimittal Appeal ·,
void . No. 145 of 1967, Ahmed Haji Bahdone v. State, the notice of : ·
a,ppeal was filed .in time but .the mein,or,a11dum of app~al ,was out·. · · I
2. Notice of ·Such appeal shall be made in accordance with of time. However, in the notice of appeal .H was, statea that «the · · . . ,
judgment is against . the .weight . of evidence ar1d he~ce · bad in · .. ' ·· :. j
paragraph 5 of Article 80, provi.ded that, if it is not possible to law». The question to be decided was whether or: not this ground · · · ,
make the notifi.c,ation in accordance with paragraphs 2, 3 and 4 · of appeal as i'ncluded In the noti,ce of appeal was a spec:lflc ground '

I
 - 238 - - 239 -

of appeal within the meaning of ·this Article. · The Supreme Court 2. However:
held that the above ground was specific and therefore valid under (a) any measures relating to the liberty of the person shall
thi-s Article. The Court went on to say :
immediately be enforceable;
«It is elementary that the trial Court should determine the
weight to be given to the evidence admitted anp decide the (b) .whenever a·n aocused is on bail, the Court which pro-
case on the wheight of that evidence. Th.at, at any rate, nounced sentence of ·conviction or the -Court to which
appears to be the substance of Article 202: The submission, the ,appeal shall be taken &hall revoke such bail if the
therefore, that the judgments of the lower Courts are con-
trary to the weight of evidence admitted is a submission that amount of the bond or other guarantee is cons idered in -
the above Article 202 has been violated. That is a specific sufficient in relation to the punishment imposed . I
t·, ; I

ground of appeal which is admissible under sub-paragraph ' :

(b) of paragraph 2 of Article 233».
NQTES ;;
l i

Article 217 This Article should be read with Article 246 which decl,ares
Application of the appeal to more than one person that the judgment o'f a Court shall be ,j!Xecuted when it becomes
final. However, a judgment of acquitt~}; shall be executed imme-
diately. · ··
1. When two or more persons, havi·ng been accused of parti- ;, 'I
cipation in the same offence, have been tried together, a notice 1:
of appeal made by one of the accused and the grounds of such ILLUSTRATIONS:
appeal, unless the appeal and the grounds apply exclusively to
one person, shall also apply to the other or others. (a) X is convicted of theft and sentenced to 6 months imprison-
ment by a District Court: His sentence shall .remain ·. suspended
2. When there is a joinder of proceedings for different offen-
ces, a notice of appeal by one accused sha II only apply to all the
during the time-limit for filing an appeal and during the appeal
proceedings; . i•n fad until the judgment becomes final..-,.-.,-~ ii;l
other accused . if the grounds -of appeal relate to procedural vio-
lations and do not apply ex-elusively to the ,a,ccused who 'i-s
(b) If, however, X is . acquitted by the District Court in the
above oase, he shall be released immediately in spite of the fact
:I
appealing. that the Attorney General is filing appeal against su,ch acquittal.

3. If the appeal is inadmissible or if it has been withdrawn in

.,I
Article 219 .i
I
accordance with Article 221, the inadmissibility or withdrawal '
Appeal against orders and decisions made before and
shall also apply to the appeal as concerns the other accused re-
ferred to in the preceding paragraph . during the trial. .i
Article 218 Except as otherwise provi.ded by ) aw :
:1
Appeal operate as stay of proceedings (a) orders and decisions made before trial may be appealed :I
against o.nly if they dispose' of the proceeding;
I. . Except as otherwise provided by Jaw, during the period '
preceding the expiration of the time-limit to appeal and .during (b) any orders and decisions m~de during the trial are
the appeal procee,dings, the execution of any act or judgment subject to a,ppeal only together with a·ppeal from the
shall be sus,pended. judgment or an order to terminate proceedings, provid-

,, •·
 -- :240 - - 241 -

ed that the intention of appealing was notified to the (a) from the day on which the .judgment becomes fin-al and
Court immediately after such or:ders or decisions were .irrevocable in cases coming within the provisions of
sub-paragraph (a) of the preceding paragraph;
made.
(b) either .from the day on which the inadmissibility of the
.a·ppeal was declared or from the day on which such
NOTES
appeal was withdrawn in cases coming within the
provision of sub-paragraph (b) of the preceding para-
(I) Paragraph (a): As an example, an order to refuse or
grant bail under Article 59 or 60 is an order made before trial. graph. .
It also disposes of the proceeding in respect of bail. As such it 4. A judgment with regard to civil damages shall be considered
is apj)ealable. But an order fixing the date for the hearing of a auto~atically revoked if, as a result of the appeal, the accused is
trial Linder Article 75, though an order before trial, does not
dispose of the proceeding and as such is not appealable. acquitted or an order that the proceedings be terminated is issued,
provided that the civil action may be started in a civil Court
(2) · Paragraph (b ): A decision on an objection by the accused _ when such action is not precluded by the nature or contents of the
under Articles 105 and 10_6 is a decision during the trial and is ·
i! . appcalable but the a·ppeal shall lie at the end of the Mai against dedsion of the criminal Court.
the whole judgment. _Of. course, the intention to appeal against
the decision in respect of the objection must be notified to the
NOTES
Court immediately after such decision.
Paragr~ph 1: Article 14 enables an injured party to apply
Article 220 to the Court in order to recover from the accused damages for any
Appeal with regard . to civil damages civil liabilities arising from the offence. Under Article 131 the
Court, having cons\dered the. evidence of the injured party' and
th~ accused concerning. the claim for damages, gives its judgment.
I. Ai1 appeal in a crimin:al proceed.ing by an injured party, or This parag:aph declares that an appeal against the judgment in
by an accused, against the judgment in reg.ard to civ-il damages regard to c1v!l damages shall be admissible only when an appeal
given in accordance wi.th Artide 131, shall only be admissible hats been lodged by the accused against conviction or by the
in · such a proceeding when an appeal has been lodged by 'the Attorney General against acquittal. · In Criminal Appeal No 19
oL1?70, Gahir Abdi. D~aleh v. AVf Burhan Awad Aboker, G~hir
accused or by the Attorney General against sentence of coIIV:ic- Abd( Dualeh had_ submitted a claim for compensation in respect
tion or acquittal. of his deceased sister Dahabo Abdi Dualeh. Aw Burhan Ahmed
Aboker was c~arged in Hargei~a Regional Court with..causing her
2. - -°An ·appeal against a judgment with regard to cMI damages cleat~ by negligence under Article 445 of the Penal Code and was
i ·:sh.a! Lbe governed by the pro-visions of civil law, insofar as appli-
' acquitted. There was no appeal against the acquittal by the
'i
. I . -cable, where : · Attorney General. It was held by the Supreme Court that Gahir
- ·..
-i . Abdi Dualeh's appeal in respect of compensation was not admis-
...
_, ;
".•
· ..'. · · . (a) no appeal against conviction or acquittal has been lodg- sible. · ·.j
,;,
, < I '

.. ~:: ;· . ed by t-he accused or by the Attorney General;

. (b) such app~al is either inadmissible or has been with- Article 221
drawn in accordanice with Article 221, by the parties Withdrawal of appeal
tl1nt lodged the appeal.
3. Wht>n an appenl is not allowed in a criminal proceeding, the 1. A party may withdraw an appeal. Withdrawal of the
·[i.111l!-li111 il [1Jr lhe appeal in a civil Court wilh regard lo a juclg- appeal shall be made by nolifying the Registrar of the Court from
ment · concerning civil damages shall run : whose a-et or judgment the appeal is made, or by .. notifying the

_._.,,.,, . .
 ,,

- 242
. '
- 243 -
R.egfatrar of the Court to which th'e appeal has .b-een taken .. ·!An
' .
. ..\ writing his reasons, petitions and defences. If it finds the appeal
appeal' may also be withdrawn durin,g the appellate hearing and ;. ~· inadmissi1ble, it shall so declare and shall ,order execut_ion of
shaU be put on record. ,-. · ·..,.· J , . ·i, the act or judgment arppealed against.
2. If the appeal has been lodged by the Atto·r~ey G'ener"ai or. 2. "A decision that an a·ppeal is inadmissi,ble shall be notified
, one of his Deputies, it shall not be w.ithdrawn without .the priot,:. to .all interested p.a.rties and to the Attorney General. An appeal
authorization of the Attorney General. · . ' · A· • • ·-: ,.' . ,
against such decisio,n may be fi.Je.d before the Supreme Court.
3. Such notification shall b,e made i,n the manner provided for in
ArU.cle 222 · paragraph 2 of Artiicle 21,5.
Trasmlssion of documents connected with appeal,

After the prescribed time-limits have expired, the Registrar Artiicle 224 .
of the Court from whose act or judgment the appeal is being, ti, Cognizance by the ·Court of the notice cif appeal .·
ta"ken, shall without delay send to the R.egistr:ar of. the Court to '
which the appeal must be taken copies of the Court case file and I. An appeal g·ives to the Court whkh hears such appeal the
of the decision appealed against and the notice of a,ppeal together power to take cognizance only of those parts of the contested
with the grounds for such appeal, documents and any ·other rele- 1!\ ·. act or Judgment on which the appeai is based, except for matters
vant memoranda. provided for in Arlicle. 107.
,, 2. Within such li,nii.\s and if !,he appeal has been lodged by:
Article 223 ·. . ' ' .
(a) the A~torney General:
~t
~,""'~,
Inadmissibility of appeal
(i) and the ap,peal is a.gainst the sentence, the Court
I. ·When: may, within the limits of the jurisdiction of . the
Court of first instance, declare the offence_ to be
(a) an appeal has been lodged: .11..
different from the offence charged, even if such
(i) by a person who did not possess the right to app.eal ;" • new of,fence is more serious, or it' may change or
or who did not have an interest in such appeal; inrcrease the punishment, revoke any benefit granl·
(ii). against .an order or decision not subject to appeal; ed, and a,pply, when necessary, ariy security . meas•
ures or any other provisions imposed or allowed
(b). the notices of grounds of appeal have not been presented rby law;
in the presc~ibed form, time or place;
(c) the notifications without which an appeal is null and (ii) and the appeal is against an acquittal, lhe Court
void have not been made; may hand down a convidion, applying together
with the p·uniS:hment any of the other measures
(d) the appeal has been withdrawn; referred to in the preceding sub-paragrnph;
(e) the law expressly provides for the inadmissibility of (b) the accus.ed .alone, the Court may not inflict a punish-
the appeal, ment more serious either in form or in length, nor revoke
the Court to which appeal has been taken shall deliberate in cham- . any benefits granted; provided that the Coud · may,
. bers, after ha:ving granted to the party that lodged the appeal. having heard the Office of the Aattorney General, in-
when it consi~ers it necessary, a reasonable time to present in ,crease the punishment upto the minimum prescribed '. by .
'\·:·-.. ,
. ·., .
 - 245
law if the lower Court has imposed a punishment below 3. When a Court makes its decision regarding an appeal
the minimum. The Court may, however, within the against a judgment concerning civil d,amages, the . provisions of
limits in,dicated in sub-paragraph (a) (i,) of this para- Articles 130 and 131 shall be observed, i.nsofar as applicable.
graph, declare the offence to be different from the offence
appealed against even if such new offence is more
serious, provi-ded the new offence remains within the Article 226
jurisdiction of t,he Court of first instance. R.cnouncing the right to be present at the appeal hearing
3. The Attorney General and the accused person may submit ! I. The accused and the injured party, subject to the consent of
r.ross-appeals within 15 days .a.fter the other has appealed. 'l the Court competent to hear the a.ppeal, may renounce the right to
! partidpate in the hearing.
(As amende-d by Article 10 of Law No. 84 of 12.12.1972).
2. The failure of the accused or the injured party to appear
NOTES shall not prevent the hearing of the a,ppeal when:
(a) there is no reasonable jusHfkation for the f,ailure to
(I) Sub-paragraph 2(b): This sub-paragraph has been amend- ap·pear; and
ed bf Article 10 of Law No. 84 of 12 December, 1972. The law
bef o,e the amendment did not provide for the increase of sentence (b) the· Court does not deem it necessary for the party to
by an appellate Court unless the Attorney General appealed a.ppear,
against the sentence as being inadequate. The result was that provi,ded, however, that the provisions r,elaUng to the defence of
-~ frivolous appeals were fil,ed by the accused persons because they
had .:nothing to lose. The amendment would empower an appel- the accused in the cases referre-d to in sub-para,graph (b) of para-
·· late Court to increase the sentence i.f the lower c,ourt has imposed graph 2 of Articl:e 14 of the Law on the Organisation of the Judk-
a. punishment below ·the minimum prescribed by law although the i·ary are observed.
Attorney General has not appealed and only t,he accused has
appealed.
.,r l Chapter II
·-\·
(2) Paragraph 3: This paragraph has been a:dde,d by Article
· I() of Law No. 84 of 12 December, 1972. It prov-ides for cross- ·j APPEALS
: appeals by the parties within 15 days after the other has appealed.
Here again, the i.dea Ls to dis.courage frivolous a,ppeals. Section I
!
' .
GENERAL PROVISIONS
Artide 225
';
. i Hearing of the appeal Article 227
i
Matters against which appeal can be taken and
1. Except as otherwise provi,ded by l,aw, only a·ppeals agains!
ju !gments and orders made in the course of the trial that proceed- grounds for appeal
ings be te,minated shall be heard in pu:blic.
I. In a-dditi-on to cases covered by s,pecial provisions, an appeal
2. For appeals against any other act or decision, the competent may be lodge.cl against jud.giments and other measures , of a Court
Cqyd__.?hall come to its deci.sion in chiambers, after having grant- ! of first insta·niee as laid down in the following paragraph.
ed ·to· the interested parties a reasonable tiime to present in writ- 2. Except as otherwise provided for in Chapter I of this Part,
fog their reasoris, petitions, objections and groun:ds of defence. the fol!owin.g may appeal:-
 -- 246 -
- 247 -
:(a.) against conviction or against acquitta·I:
(Hi) an order that the case shall not proceed given in
(i~ the accused, where he is convicted or granted the pre-trial proceedings in any Court;
jud-ioial pardon- or when security measures are
a,pip.Ji ed to Mm; (iv) matters lai•d down in sub-,paragraphs (c) ,ind (e)
of paragraph 2 of Article 227.
(ii) the Attorney General in case of acquittal or con-
viction; (b) The Assize Section of the Court of Appeal sh,lll ha\'l'
jurisdiction over a.ppeals with regard to juclgmenl$
(b) against an order that the proceedings be terminated: given by the Ass'ize Section of a Regional Court and
(i) the accused, when security measures have been any order given by such Assize Section at a trial that
the proceedings be terminated.
ordered against him;
(H) the Attorney General;
Artide 229
(c) against measures concerning personal li1berty:
Decisions of the Court of Appeal
(i,) the accused;
l. The Co.urt o.f Ap1peal shall:
('ii) the Attorney General;
(a) if t,he a;ppeal is lo,d.ged against the decisions · specHied
(d) a,gainst a ju.d-gment in respect of civil damages:
in sub-paragraph (a) (ii) and . (·b) of Article 228,
(•i) the• acoused; decide On' the merits of th.e appeal, after conducting .a t.
(ii) the injured party; heari.ng in accordance with the provisions of Section ii I

of this Chapter, provided that, if the Court ~f · ,:\ppeal

(e) against the penaJ.Ues in.flided under the prov1s1ons of declares its,elf i,ncompetent to hear the appeal or declares
paragraph 2 of Article 16, a Counsel who has been so the jud.gment of the Court of first inst.ance. to be null
convicted.
and void, then the Court of Appeal sh,all ord·;/ that the
3. case be referred to the Court competent to he,ll" it;
An ap.peal shall b.e allowe·d on grounds of fact or of law.
(b) i.f the appeal is lodged against the decisions specified
Article 228 in sub-paragraph (a) (iii) of Article 228, ,iffirm or
reverse, del.iberatiing in chambers, in accor·dance with
Courts which may hear appeals
paragra,ph 2 of Article 225, the decision appealed
a.gai-nst. The Court of Appeal shall or,der, if the deci-
A Court of Appeal shall be competent to hear . ap,peals :
si.on has been reversed, that !,he case be referred back
(a) The General Appellate Section of the Court of Appeal to the competent Court;
shall have jurisdiction over :
(c.) in all other cases, decide on the merits of the appeal.
(.i) decisions referred to in Articl.e 223; deli,berating in chambers in .accordance with paragraph 2 .I
of Article 22,5, and shall either ·affirm or modify !he ''
(ii) judgments given by the Criminal Section of a
District .Court .and by the General Section of a decision a,ppeale,d a,gai,nst.
Regional Court and any order by such Sections 2. Decis-ions of the Court o.f Appeal shall be made public:
given a,t a trial t.ha,t the proceedings be terminate,d;
(a) by read·in.g the dis,positive part of the decision 1n open
 249
arrange to inform \he accused and his Counsel o[ such
Courl, in the cases provi-de.d [or in sub-.paragraph (a)
(I
appointment;
of the preceding paragraph;
(d) order that t-he injured party be summoned to appear
(b) by depositing its decision with the Registrar o[ the he[ore t.he Court, if the injured party or the accused
Court in all other cases. has appealed against the judgrnent concerning civil
:l. A copy of the Mcis-iori o[ the Co.url o[ Appeal shall be sent damages;
by . the Court Registrar to the Court against whose act or judg- (e) order that the /\t\orney General be duly notHied .
111ent the appeal was taken. The decision of the Court shall also
3. The date o[ the hearing shall be notified to the a,ccused and
be notified by the Registrar -0[ the Court to the parties concern_.
brought to the notice of his Counsel and o[ the Attorney General
eel, in . the manner provided for in paragraph 2 of Art.icle 215, and
at least 15 days before the hearing.
~h,1!! also be communicated to the Attorney General, if they were
11ot prl'~l'l1l \\'ile11 !he decision was announced. '1 . Ins.ofar .as applicable, tile provisions of paragraph 5 of
Article 80 and of Article 89 shall be observed.

Section II
Article 231
HEARING OF THE APPEAL
Hearing of the appeal
Article 230
1. Af.ter the opening of lhe hearing o[ the appeal. first the
Procedure of Court or first instance to apply to Court or Appeal - appellant s·hall explai-n the grounds for his appeal, then the other
Preliminaries to hearing of appeal party shall be given the opportunity to reply. Bo.th parties may
make comments and observations, raising objections and present-
I. 1i1sbfar as a,pplicable, the provis ions relating to the hearing ing requests an.d petitions which they deem pertinent, and ex-
o[ a case in a Court or first instance shall be followed in the pressing their views on the points of fad and law, which in t,heir
hearing of an appeal. opinion the Courts should accept. The right to reply shall be
;' \:. c~ercised only with th~ consent o[ the Court. ·If an appeal has
i '.? . ... \\/ hen ;111 appeal has lo be heurc.l, the Presicl,ent of a Court
been made in l,he same case by both the accused and the Attorney
uf Appeal shall : General. · the nppeal of the accuse,cl shall be heard la&t.
. .
Insofar as applic;:ibl!:', the . provisions of Article 119 shall
(a) fi x tile dale of' the hearing;
apply,
(b) · order the appearance:
2. If the appe,al is against a c-0nvictio.11 or an acquittal and the
. (i) of the a:ccmed who appeals ; and Court does not consi,der itself able to reach a decision upon the
·:. (ii) ·or · an ·accus,ed who has not appealed, if the_ appeal available eviqe.nce, the Court may, even on its own motion, order:
• • ,;1 ... · has been · made ' by the Attorney General or 1s ma de (a) the re-,hearing before it, in whole or in part, of the trial;
,vith; ·r egard to _· one of the cases provided . for in (b) the examination of witnesses heard i·n the tdal of first
Article 217; instance, who may testify even with resipect to ma.tters
[l') ,1ppoinl Counsel for t.he accused in the cases pr_ovided not previously considered ;
for in sub-p·aragraph (b) of paragraph .2 of Arhcle. 14 (c) the taking of new evidence;
· of the Law on the Org'an.ization of the . Ju,diciary, when
(d) the re-hearing of t'xpert witnesses,
illl' :it'J',ll~<'cl is without Counsel. The Court shn\1
.. ,
,. '
,_;: ·· ii
.; i'..i
' j.

: .. ,:
 - 250 - - 251 -
3. 1f the appeal is against an order that the proceedings be NOTES
terminated and the Court of Appeal ·cons+ders that there are vali.d
grounds for the appeal, the Court .of Appeal shall set
asi•de the impugned order and shall either try the case itself, in
This Article prescribes who may · appeal to the Supreme
Court and against what decisions and on what grounds. The
i
accordance with .the provisions o,f BOOK TWO of this Code or 1
following judgments of the Supreme Court may be of interest :-
remand the case for trial lo the Court whkh passied the impug ned Criminal Appeal No. 28 of 1967, Abdulkadir Abdi Dualeh v. State
or,der.
In his Memorandum of Appeal, the appellant stated - «!
wish to appeal against the length of sentence and various convic-
tions». ·
Chapter Ill
APPEALS TO THE SUPREME COURT Paragraph 2 of Article 232 specifies the four questions of
law on which only an appeal may lie to the Supreme Court:
These are:
Article 232
(a) lack .of jurisdi,ction or incompetence of the Court;
Matters against which appeal may be made to the
(b) violation or erroneous application 'of legal provisions;
Supreme Court (c) nullity of the judgment or the proceedings;
(d) omission, insufficiency or contradiction in t_h_e groud s
· I. ln addition ,to cases esta:blished by spedal provisions, ,and on which the judgment is based, relating to a ·m·aterial ·
subject to the provisions of Chapter I of !Ms Part, an a•ppeal may point raised by either p.arty or by the Court on its own
be lodg,ed with t.he Supreme · Court: motion. ·

(a) by the parties s:pecif.ied in para,gra,ph 2 of Article 227 It was held by the Supreme Court that the appellant had
not raised any of the above points of law and therefore the appeal
agafost any acts and decisions referred to therein when was inadmissible.
handed down by a Court of second instance;
Criminal Appeal No. 17 of 1968, Mohamed R.egal Warsama
(b) by the accused or by the Attorney General a·g,a,inst any v. State.
ot,her decision handed down in an a,ppellate proceedings,
In this appeal to the Supreme Court, the only ground of
or a.gainst any other decision concemin·g which a:ppeal appeal was that «the conviction was wrong .in law». The Court
to the Court of A,ppea l is not permissible. remarked that this could certainly be a ground '.of appeal befqre
the Court of Ap•peal in view of Article 227 (2) (a), but not ·so
2. An appeal shall be admissible only on the followi·ng before the Supreme Court under Articles 216 and 232. · Accord·
questions of law :- ing to the Court, such a ground .of appeal a.mounts to saying -
«I do not know of any legal provision which inay be of assistance
(a) la~k of jurisdiction or incompetence of the lower Court; to me; however I am asking the Court to discover, and in my
favour, such a provision or provisions».
(b) violation or erroneous ap:plication of legal provisions;
The Court went on to say - «It is evident that the inten-
(c) nullity of the jud,gment or the prooeedings; tion of th€ legislature was .to restrict the .influx of appeals to the
(d) omission, insufficiency or contradition in the grounds on Supreme Court so that only. genuine appeals may come before it.
which the judgment is based, rel,ating to a ·material That policy will be frustrated by admission of appeals on grounds
of this nature which will have the effect of circumventing this
point raised by either party or by the Court on its own provision».
motion. The appeal was held inadmissible.
 (:ii.i) set aside the judgment . appealed against without .
Criminal Appeal No. 100 of 1970, Hassan Mohamed Hassan remanding the case to any other Court in those
and another v. State. cases in which a sentence of convicti-0n cout.d not
have been passed or in which· no criminal proceed·
The facts of this case are somewhat unusual. Appellants ings coulq have been started or continued;
wrre arrested carrying a bundle of dothes alleged to be the pro-
perty of another. They asserted that the clothes belonged· to I (iv) set aside in whole or in part the judgment appeal- "...... ·
them and no formal complaint was made by the person claiming ed against; where no additional evidenc~ is requi·
to have been injured. The lower Court, however, convicted: them
apparently on the ground that they failed to establish that the
~1 red, dedi:le on the merits and, where additional
clothes were thei,r property. Their appeal to the Court of Appeal evidence is required, remand the case to ;the Court
was dismis.sed. I that pronounced the judgment appe~led ~·gainst;
They appealed to the Supreme Court although they did not I (h) H an appeal is ag.ainst an order i-ssued during the '
put up any specific ground o.f law as required under this . Article. trial that the proceedings be terminated, the Court shall, . ·
However, the Attorney General rig.htly submitted that the appel-
lant ·s guilt ha-d not been established and tha.t in fact the lower
I after a hea.ring in open ·court, in accordance with Arti·
Courts had put them in a position where they were required to
prove their innocence. The Supreme Court agreed with .this view
l
I
cle 234 .:
(i) ,reject the appeal;
··

anci nllowecl the appeal .and remarked that the pr-0visio.ns of the (ii) set aside the order appealed against, a11;d, insofar ·
Criminal Procedure Code ordaining that a·ppeals not based on
legal specific grounds · should not be admitted do not bar the as appikable, observe the provisions of the preced- .
acceptance of the grounds of the State when it is the respondent ing sub,paragraP.hi.•... .: ,
nor do they preclude the Court from raising matters it is allowed (c) 'in every oth~r case, it shall proceed in the manner' laid
to raise on its own mo.tion provi.ded that the appeal is not time·
barred .
1J down in the preceding s.ub-paragraph, reaching its
decision in chambers, i.n accordance with paragr~ph 2
of Article 225.
Article 233
2. Judgments of the Supreme Court 5hall be drawn up in writ-
Decision by the Supreme Court ing by the President of the Court or by another member of the
Bench.
1. The Supreme Court, depending o.n the particular case, shall. .! 3. Tihe p.rovisiions of paragrap'hs 2 and 3 of Article 229 sha11 ~ .•.;: ; .•..
decide in one of the following ways :- i apply, insofar as appHcable.
!
(a) if the appeal is against a judgment, it shall, after a II
i NOTES
hearing in open Court, in a,ccor.dance with Article 234::
i

(i) reject the ,appeal and make any necessary correc- This Article· sets ·out the ways ·in which t_he 'Supr~me :court . :·
tions in any errors of law in the grounds given shall, depen•ding .on the ' particular case, : decide ~n appeal. The .· ._,, _
.and errors in the provisions of l.aw ref erred to in ,expression . «{:ompetent Court» in · pai-agr.aph : 1(a) (ii) .of ·this ··-· , .
· the judgment, provided that such errors · did not. Article was interpreted .by the Supreme Court in the· circumstances _. )'".
influence the dispositive part of the judgment; of Criminal Appeal No .. 8 of 1965, Yusuf Saeed Arraleh v. State, ·
as the Court of Hrst instance. 1

. . '
(ii) set aside the judgment appealed again,st and re-
ma.nd the case t,o the competent Court;
 - 254 - - 255 -

Article 234 NOTES

Hea'ring of the appeal in open Court
(1) The Supreme Court is the highest Court of Appeal and a~
such its decisio·n on appeal is final and binding and not subject
When the appeal is to be h~a,rd in open Court, the provisions to any further appeal. However, this does not affect the right
of Article 230 and of paragraph 1 of Article 231 shall be observed, of a condemned person to petition for mercy to the President of
the Supreme Revolutionary Council who is the Head of State. ·
insofar as applicable. .
(2) By Law No. 38 of 5 April, 1972, the Supreme Revolutionary
Council has been empowered to intervene in judicial matters .
The Council may, either on its own motion or on the petition of
Article 235 an aggrieved party, review any final judgment, if H considers that
any such judgment is contrary to the principles of equality and
Appeal against decisions .given by a Court re-hearing a justice as enunciated by the First and Second Charters of the
cases remanded by the Supreme Court Revolution. In its power of review, the Council may :
(a) ,confirm, vary or set aside any judgment;
L The Court to whi.ch a case has been remanded for re-hearing (b) order a retrial by the competent Court;
shall cqmply with the findings of the Supneme Court with respect (c) make any consequential or incidental order that may
be just or proper.
k1 all \q1;1estions deci~ed -~Y it.
· 2. . W~en a C::o:urt_re-h,ears a case remanded to it by the Supreme (3) The decisi·on of the Supreme RevoluHonary Council made
Court,\ an app,eal may beJ odged against the new judgment only under Law No. 38 of 5 April, 1972, shall be final but nothing in
with · r esp-ect to those parts which ha_ve ·not already been decided the said Law shall be deemed to authorise the Council to make
1 any order to the prejudice of any person accused of a crime unless
. ,by the1 Supr~me Court. But an appeal may also be lodged when he is given opportunity of being heard in his defence.
· ' Jh(! C~urt which re-hears the case fails to comply with the provi-
sions pf . the preceding paragraph.
Chapter _IV

NOT E S REVISION

Article 237
., .. . . Ar;ticle 233, inter alia, empowers the Supreme Court to re-
, m_and ,a case for retrLal .to .the competent Court. This Article de- Cases subject to revision
. .. .: ,~lares ithat a fur_ther appeal · shall not lie in the re-heard case on
1
. .: .matter~ whiph have already been decided by the Supreme Court. . When a convjction · µas become final, and even when the pun-
· 'J n Criminal. Appeal No;, 8 oLl~.65, Yusuf Saeed Arraleh v. State,
)he" Cpµrt h~l4 that the. ap·pellant was .debarred from raising the i·shment · has bi,en served or has become extinct, revision may be
:t )jlatteri of jurisdiction which the Sup,reme Court had decided in allowed in favour of the conv.icted person at any time with regard.
;::~he :~ar1lie,r ·Ndgment . . to .those cases coming within the provisions of Article 238.
·: , .,

Article 236 NOTES

· No aP,peal to lie against decision of · the Supreme Court
(!) The object of the revisional jurisdiction is to confer upon the
Supreme Court a kind of supervisory jurisdiction to correct miscar-
' No appeal shall lie . against any decisoin of the Supreme riage of justice. This power may· be exercised at any time in fa -
· Court with r"egard to cr,iminal matters. ,-
vour of a co.nvicted person when a conviction has become final.
 _ . ._. ,
-:
.-._,)-
According to paragraph 2 of Artic1~ 246, a ju~g!11ent is f.inal when NOTES
no appeal other than an application for rev1s1on can be_ lodged
against it . R.evision may be a\lo":'ed even after a punishment
has been served or has become extinct, e.g., by death of the o.f-
fendcr after conviction, under Article 148 of the Penal Code. (1) Paragraph I: This paragraph sets out the three cases in
which a revision may be sought. These are:
(2) Cases in which the p_owe_r o~ revision may be exerdsed are
set-out in_the next succeeding Article. (a) new facts or evidence after conviction;
/ ":-·j:,·····.:. _--:: (,b) ,convicti-on being the r,esult of some, fa:lse a.et or doc,u-
ment or another offence;
Articl.e 238
(c) incompatibility of the finding of conviction with another
·1n-sfances in which a case is subject to revision final penal conviction.
(2) New facts or evidence after conviction :
1. Revisi·on may be sought : This may .be -explained by the follo,wing illustr.ation :-
(a.) if after the convidion new facts or new evidence have X was convided of Y's murder and sentenced to death by. the·
:occurred or -been discovere-d, which either sep:arately "Regional Court. ms appeals to the Court of Appeal arid the
· Supreme Court were dismissed. Before the executi\m. of the death
or in connection with facts or evidence already consid· sentence, new evidence is discovered which clearly . establishes
ered at the trial, clearly establish th:.at the offence was :1 that it was not X but Z who murdered Y. The Supreme Court, on
not committed or that it was not the accused who corn· revision, shall set aside X's conviction and sentence. ·
! mitted it;
(3} Conviction being · the result of some fals·e act or document
(,b) i[ it is shown that the conviction was the .result of some or another offence :
This may be explained ,by the following, illustration :- .
false act or document or the result of another act which In the above illustration, if X's conviction was. as a result of
the law consi·ders an ·df.fence, provided that a final con- the evidence of Z and it is shown that Z's evidence is · false evi-
viction has been :pr.om>.unced as a result of such false dence wi.thi.n the mea.ning of Article 291. of the Penal Code, the
act or document or such -other ,offence; Supreme Court, on revision, shall s.et ·aside X's conviction and
J sentence. ·
;
'i
(c) if the findings on whilch the conviction is based are. in· \
(4) Incompatibility of. the finding_ of conviction with another.
.i
:: . compatible with those of another final penal conviction. final penal conviction : ·
,·· This may be explained by -the following _illustration :-
X is charged with and convicied of the offence of theft In
2. Every petitoin for re-trial shall be based on fads or eviden- Y's house on a certain day and his conviction has ·become final.
ce which, Tf establi·shed , demonstrate .t hat: Later, Z is charged with · and convicted 'of the same theft without
•:·; .. ther-e being any complicity with the earlier offence. In such a
; , (a) an -offence was not committed, or -that, if i~ was. corn- case the Supreme Court may exerdse revisional -jurisdiction, unden
.·.·., ;',·. ·_ .. - mitted, it was not the acoused who committed 1t; .or -this Article because the latter ·finding -is incom,patible ,with. the
·: r :. . . . ' . earlier final c-onviction of X. · · · · · ·
:: '(.b) "there w,as AO evidence whatsoever .that .a_n offence wa_s
_:·. ·- ..,:'---.--::"committed ; cir; tl:i.at, ..if it was committed, ·1:t ·was .not the
· ..•• ,,.:1:· . 1,,\!,·;_-_-_ '·_:_ '"-·-
· (5) P~ra:graph .2: This. paragraph sets out' the:,~vJJ ca-ses on.
. ,,' -~-.. . ; '... . . . (' accus'ed-·who ·cbmrni±ted it: which a petition for re.vision shall be based~ rt · would . _appear -
.-l! '• that the word «r,e-trial» in the first line of this paragraph is a
-H - ··\ ·· ·, Otherw-is.e the petiH~n shall n-ot be admissible. mistake a·nd It should read «revision».
i!
·'.·
-,
f •.
 - 258 - - 259

Article 239 (b) if it finds that further investigations are necessary,

shall provisionally set aside the convidion and refer
Persons who may seek revision and petition for revision the case to the competent Court whkh shall try the
case in the normal way;

..
I. Revision may be sought by :

(a) the convicted person;

(c) in any other case, shall reject the petition.

Article 242
. (b) the Attorney General; Procedure when conviction Is set aside
·, (c) the «descendants», «ascendants», or the spouse of the
convicted person i.f the convicted pers·on has died., The Supreme Court, when it sets aside a conviction wi.thout .
remanding to a lower Court, or a Court to which a case has been
2. A petition foor revision may be submitted in per.son or remanded, when either Oourt gives judgmen,t of acquittal, ~hall
. . . . thi;ough, .a special representative and shall· be presented, together . also order the restitution of the fines or damages paid as a. con-
·;:\~. ·... ··Wit~!~itpportil,lg documenta.tion, to the Registrar of the Supreme sequence of the conviction.
· Court.,.'· • · • • ,.
r. Article 243
·~
:• Arlic!E> 240 Damages
~
.
.
I'
Preliminary proceedings
1. A convicted person who has been acquitted as a result of a
revision proceedings may submit an application to the Supreme
. .. ·Y•1; °rhe President of the .S.upreme Court, having received the Cour-t for the payment 'Of dama.ges by the State.
'. '. • p~(iti'on anct: telev~nt documents, shall convene· the Court i~
chaJl'!bers, and decide as a preliminary matter whether the appli- 2. The · Supreme Court shall decide in chambers on whether
cation for revisio.n is admissi,ble. damages should be granted and on the amount. The Court shall
.t" . ' take info account th·e mat.eri,al ,and mor.al damages ,suffered by the
·";-·~· t,2. If the requisites for filing a petition are lacking or if the convided person as a consequence of the judgment set aside.
· · petiioln appears 'obviously unfounde·d, the Court shall declare the 3. The State may recover costs, withi,n the limits of the law,
petition inadmissible. If the Court does consider the application from any person who with criminal intent caused the wrongful
to be admissible, it shall proceed in accordance with Article 241. convidion.
. , ..: ........ ,'..-..

Article 241 Article 244

Appeal against judgment In remanded proceedings
II
Hearing In open. Court
I. The Attorney General may appeal against a juclgment of I
·1
1. If the Supreme Court .allows the petition, the proceedings acquittal given by a Court to which a case .has been ' remanded ,
shall ·take place in open co·urt, in the manner provi.ded in Arti- i
2. There shall be no appeal against a judgment of convidion
cle 234. by the Court referred to in paragraph 1.

2. The Sup,reme Court: 3. In all cases, a pe,tition for another revision proceedings may
· (a) if ft finds that the facts and evidence show that the be made if the applkation is based on different facts and evi- I
, . · • !~
1
petition . is well-founded, shall set aside the conviction; dence. I
;;r~·. I
 261
r~ART II
-EXECUTION G. A judgment of convidion shall be ex.ecuted within , 5 da-ys
f.rom the day on which the authority charged with the ex~ution
Cha:pter 1 of the judgment receives notice that the· judgmen,L has become ·
GENERAL PROVISIONS final. However, if the ju.dgment provides for the release of the
accused, such accuse,d shall be released immediately .
. Article 245
7. Insofar as applicable, the provisions of this · Article sha·II
Territorial enforcement of sentences and other measures a ls·o be observed with respect to an order tha.t proceedings be
passed by Courts terminated.

.Any sentence or ·other ·measures passed by a Cour,t with 8. A petition for an extension of the time-limit to, lodge · an ·
rega~d t_g_ _criminal matters may be executed in any pad of the appeal made in accordance wilh the provisions o-f paragraph 2
" erublic. of Article .214 shall not operate as · a s.lay of ·the execution of .
sentence, unless a competent Cour.t orders otherwise.
Article 246
Article 247
..
Enforcement of ju.dgment. and of an order that proceedings
R.ules .governing execution ·'
be terminated
The . execution of judgmenls shall be governed by the provi-
_I. The judgment of a Court shall be executed when it becomes sions of this Code and by the provisions of the Penal Code.
! . final or \\'hrn the law permits its provisional exewlion.
.,
2. A judgment is final when no appeal other than an applica·
tion for revision can be lodged against it. .N OT ES

·.,
. , 3. When an appeal can ·.be lodged agains.t a judgment, the The provisions of the Penal Oode governing the execution. of
i judgment shall become final f.rom the day Dn which the time- punishments referred to i·n this Article are Articles ·136 .to 142.
\.
limit for appeal expires, when ,no appeal has been lodg.ed wHhin
such time-limit. Chapter II
4. In cases in which ap·peal is allowed to the Su,preme Court, EXECUTIOH OF PUHISHMEHTS
a judgmenl shall become f.inal from the day on which:
Article 248
(a) an appeal against the decision of the Court of Appeal
\\' hich declared the appeal to be inadmissible has been Execution of death sentence
- r.e.jeded;
I.. When a sentence o·f dea.th has become final, the Attorney
(b) an appeal has been declared inadmissiible or has been General shall urgen,tly inform the Supreme Court and 'the Secre-
rejected .
tary of State for Justice and Religion.
·i· 5. . A 'jlidgmen.t of acqui'ttal shall be executed immedi:alely after 2. The S.upreme Court, having received the records·'Of the trial
being. pronounced . . .
concerned, shall Drder the execution, fixing the date, time and ·
place, and shall send such order to the Attorney General.

·', I
 262 - - 263 -
3. A death sen.tence shall be carried out by shooting and shall (2) Paragraph 5: This paragraph like par.agraph 1 of Article
be _executed · by riH~mbers of the Prison Guards-. The death sen- 140 of the Penal Co.de sets out the three cases in which execution
tence shali ·.not be executed in public, unless the S.ecr-etary of of death sentence must be postponed. These are:
Sf.ate for . Justice and Religion provides ot,herwise.
(a) when a peti:tion for pardon or mercy is submitted;
· 'At the execution there shall be present a representative of the (b) agiainst a pregnant woman during her pregnancy. This
Attorney Gen,er.al, .a medkal officer appointed by him, and a · is to save the life cif the child; ·····- · -· ·
r11(nister of the religion pnadised by the convicted person if he so
requests. (c) against a woman who has given birth t-o a child less
than a year ago. This is to avoi·d suffering to the
4. A special record shall be ma pe by the representative of the child.
Attorney General of. anything which the condemned man said, of
t~e execution and of the medical certificate that death took place. (3) Notwithstanding the provisions of this Article, the execution
of death sentence -is now carried out under Law No. 4 of 14
5. A death sentence shall be postponed : January, 1973.
(a) when a petition for mercy bias been submitted and until
such time as a dedsion is reached on the petition; Article 249
(b) against a pregnant woman as long as s.he is pregnant; Execution of sentence of imprisonment
(c) against a woman who has given birth to a child less
than one year previously, unl·ess the child ha1s died, or I. When a judgment sentencing a per.son to impri~onment has
has been entrusted lo lhe care of another person an-d become fi-nal, the "President of . the Cour:t that pronounced · judg-
birth occurred more than two months prev,iously. rnent in the first instance shall issue an order" of . imprisonment
against the convided person, and shall ·send such·-:order ·together
with a copy of the judgment to the Attorney 'Gerieral for exe-
NOTES cution.

(I) · Paragraph 2: In Criminal Cause No. 13 of 1971, in the If the convicted person is already in detention, a copy of
matter of execution of death sentence against Said Yusuf Ismail, the order of imprisornnent shall also be sent to the authority
the Attorney General of the N·ational Security Court requested the detaining such convicted person.
Supreme Court to order the execution of the death sentence, fix-
Ing the date, time an:d place, in a,ccordance with this paragraph.
The accused was convkted of murder and sentenced fo death by 2. An order of imprisonment shall indicate:
the National Security Court. The sentence of death had become
fincll ori the rejection of his ·petition for pardon by the Supreme (a) the ·type and the length of the term of imprisonment;
R.evolutionary Council. (b) the date on which the convicted person shall be releas-
The Supreme Court, alter discussing the legal position both ed without ,any further order, u.nless he is lo be ctcb1in·
before and a.fter the establishment of the Nafon,al SecurHy Court ed for another reason.
under Law No. 3 of 10 January, 1970, came to the conclusion that
the jurisdiction over the present matter has been taken out of .. .n..: •• .
3. The President of the Court may order that a sentence of
the or,dinary Courts and faa.t Ar-tide 248 is impJi.edly ,amen•ded to imprisonment be suspended in the cases coming within the pro-
the extent that the Supreme Court has no jurisdiction over the
execution o[ death sentence pronounced by the National Security
Court.
visions of paragraph 2 ·of Article 44, until such time as !he rea-
sons for t-he suspension are no longer valid.
I
\
 ~ .. \) \ ..'

NOTES
Article 250
Execution of sentence of fine This Article has been substituted by Article 11 of La.w
No. 84 _of 12 December 1972. The new Article would provide
1. Nolwithslanding anything conta.ined in this Code, where an much simpler and workable procedure for the execution o[ sen-
tence of fine .
accused is sentenced to pay a fine and the sentence has become
[i i,al, the Cot1rl pa$sing lhe sentence may, unless the .line is
paid : Artide 251
(a) allow \ime [or payment of the fine .and grant ,extension Detention prior to judgment
. of the time so a\1-owed;
(b) direct payment of the fine to be made by instalments; I. A period of imprisonment ·undergone prior to . a judgment
becoming final shall be deducted from the overall ·sentence of im-
(c) issue a warrant [or the levy of the amount of the fine prisonment; where the sentence is one of a fine, an amount cor-
by seizure and sale of any property .belonging to the responding to such period of imprisonment shall be deducted from
the total fine .
accused;
2. \~hen a case is heard abroad and is re-hear,d in the Somali
(d) din~d lhat in default of payment of the fine, the Repu.bllc, the punishment served abroad shall .alw,ays be deducted
. accused shall be · imprisoned for a · term •in accordance fro~ an_y punishment -inflicted by a Court in the Somali Republic,
. with law which imprisonment shall b.e in addition to ~akmg into account the form of such punishment served · abroad·
any other term of imprisonment to which he may be .1f a .p~rson has been in detention prior to judgment abroad, th~
sentenced; prov1s1ons . referred to in the preceding · paragraph shall ~pply.

(e) direct lhat lhe· .accused. shall he searched and ·any

: money found on him applied towards the payment of Article 252
~t1,h fine ancl the surplus , if any, returned to him: Execution of accessory penalties
Provided that the money in his possession shall not
be so applied . if tile Court is satisfied t-lrnt it docs not I. Insofar as applicable, the provisi·ons of this Chapter shall
.·......,. .. belong lo him . apply to .the executio~ of accessory penalties.

2. 'The following periods slinll not be deducted from .accessory

2. Imprisonrnenl in de[aull o[ payment o[ a fine shall termi- JJ°ena Ities :..:...
1\all~ \\'he11cvL·r lhe fine is paid or levied by process of law.
(a) ,the period of time during which a convicted person is
'.\. l [ pa rl of lhe amount is paid or levied by process of law serving a sentence of impri,sonment; · ·
before expiry o[ the lerm of imprisonment, the period still to be
served shail ) eJ1_roporti'onately reduced . (b) . ~he peri-od during \\'hich the convided person was sub-
Jed to deten-tion as a sec.urity measure;
(As subslilu\ec\ by Article 11 of Law No. 84 of 12.12.1972) .
 - 266 -,-
- 267 -
(c) any period during which the convicted person wilfu~ly
avol.ded the execu!ion of imprisonment. or a security (b) any amnesty, conditional · pardon or indult, .. whel1e_yer
measure. the convicted person fails ·. to comply with any of _the
required cond'itions or obligations . .

NOTES 3. Revocation . of the. benefit of converston of a sentence of im -

pri.sonment to a fine shall be ·ordered in the manner laid down for
( l) This Article relates to the execution of the accessory gen~l- enforcement measures by the President of the Court . who pro-
ties. Article 92 of the Penal Code sets out the accessory penalties nounoed judgment i,n the first instance, in the cases !,aid down in
wh.ich are: paragra:ph 3 of Article 125.

(a) in the case of crimes : 4. Insofar as applicable,. the pr-0visions of paragr aphs 2 and 3
of .Article 223 shall ap.ply. · ·--...- ~ ~
(i) inter-diet.ion from public offices;
(ii) inter,diction from a professi•on or trade;
Chapter 111
(Hi) legal interd iction; EXTINCTION-Of ,OFFENCE Mom.- PUNISHMENT
(b) in the case of contraventions, the suspension of the
right to practise a profession or trade. Article 254
Declaration- of exti'nctlon of offence or punishment
(2) . Accordin-g to Article 93 o! the Penal Code, the accessory pe-
nalties ,shall follow by operat,1011 of law as the consequence of
conviction. I. Whenever, after c-onviction, an offence or punishment be-
comes extinct, the President of the Court which pronounced
(3) The various accessory penalties are descri,bed in detail in SeDtence in .the f:irs.t i.nsfo·nce shall declare the offence or the
Articles 101 to 108 of the Penal Code. punishment to . be .extinct, taki.ng all necessary measures which
resuit from such extinction.
Article 253
2. Insofar as a,pplica,ble, the provisions of paragraphs 2 and 3
Revocation of conditional suspended sentence and of other of ArHcle ~23 shall apply.
benefits
N o .r Es
I. Revocation of conditional suspended sentence shall be car-
ried out in the form laid down for enforcement measures by the (!) ThLs Article deals .with the formal. declaration of extinction
Presi,dent. of the Court that pronounced judgment in the first in- of offences and puni,shments by the President of the Court which
pronounced. sentence in the first instance. ·
stance or by the Court which later pronounced a sen_tence of con-
viction, in. the cases laid down in ,paragraph 2 of Article 127. (2) Articles 143 to 14,7 of the Penal Code relate to the extinction
-0f offences .
2. In the same way, the foll-owing meas,ures -shall be rev-0ked :- (3) Articles 148 to 155 of t·he Penal Code relate to the extinc ·
(a) ·the benef.it of conditional release in the cases indicated tion of punishments .
in sub-paragraph (a) of paragraph 2 of Article 127; (4) Articles 156 and 157 -0f the P'enal Code relate t·o the e.ffects
of the causes of the extinction of an offorice or punishment.
 Article 255 Article 256
Measures relating to pardon and conditional release Rehabilitation after conviction

l. An appeal for p.ard:0n or conditional release shall be a.d- I. 'In the cases 1ndicated in Article 153 of the Penal Code, r~-
dresse d lo the President of the Republic and sent to the Attorney ha,bilitatio~ .shall° be granted, at the request of the convicted per·
General.
son, by ,an order from the Cour,t of Appeal, having heard the
Attorney Gener.al.
The a•p·peal shall be signed :
(a) by the convicted person; 2. If rehabilitation is not granted because the convicted person
has oot given proof of good conduct, a petiHon for rehabilitation
(,b) by a «descendant», «ascendant» or s1pouse of the con-
may only be submitted a·gafo after a period of 2 years from the
victed person .
submission of the previous petition.
2. Pardon or condHional release shall be granted by decree
3. Reha•Dilitation shall be revoked by the President of the
of the Presi,dent of the Republic, having h.eard the Secretary of
Oourt of Aippea·l that granted it or by the Court which pronounced
State for Justice and Religion and the Attorney General.
a subsequent conviction in the cases referred oo in Article 154 of
the Penal Code.
3. Insofar as p,o,ssi.ble, the provisions of Article 254 shall
apply with regard to the implementation of the d,ecree.
4. Insofar as applicable, lhe pro~isions of paragrnphs 2 and 3
of Article 223 shall a,pply.
NOTES

. ( l) This Article deals with the procedure for the. grant of pardon Chapter IV
or conditional release. The power of the «Pre.s1dent o.f the Re·
public» t·o grant pardon ·under this Article i,s now vested in the MATTERS ARISING IH EXECUTION
Suprem e Revolutionary Council by virtue of Law No. 1 of 21
October;~J,969 .
Article 257
(2) I~ the ca,se of offences tried by the National Security Court, Competence In matters arising In execution
an application for pardon of . the whole or part of the sentence
ma y be made to th e Supreme Revolutionary Council under para- The President of a competent Court who has the power to
gra ph 2 of Article 4 of Law No. 3 of 10 January, 1970. enforce any order or other measures shall also have the power
to decide on all matters ,arising in the course of the execution
(3) .. A pardon, according to Article 149 of the Pen.al Code, has
the effect of extinguishing the punishment, wholly or in part, or thereof.
commuting it to another kind of punishment fixed by law.
Artide 258
(4) Conditional release, according to Article 151 of the Penal
Code, inay be grantee:\ to a person .sentenced to impnisonment for Proceedings relating to matters arising in ex;ecutlon
!He who has served at least 25 years or a per.son sentenced to
··imprisonment who has. served h~lf of .the pun!s~r:ient or at least I. Matters relating to execution may be raised by the Attorney
three-fourths of the punishment 1f he 1s a rec1dw1st, provided he
has given continoous proof of good conduct General ,or the ·party ,concerned.

:,
 - 270 - - 271
.!
2: The President of the Court"shall decide on such matters after Chapter VI
granting the interes~ed parties reas:onabJe time to prese~t their CRIMINAL :RECORDS
arguments, petitfons 'and defences in writing.
Art-ide 260
.3. · · _lnsof.ar as app)ica,ble; -the provisi{)ns of p·a ragraphs 2 .a,nd 3
~f Article 223. .shall :apply.
Criminal Records Office

I. There shall be one uirifJed Cr,iminal R,ecords Office , which

..shall- be a section of the Head,quarters of the Police Force . ll
Cha:pter V shal.1 be under the ·immediate direcHon ,and supervision of the
· EXECUTION OF SECURITY MEASURES Attorney General.

2. 1n the Crimir.1al Records Office , there shall be kept extracts

Article 259 of orders or other measures referred to in Articles 261 and . 262,
Application, modification, substitution and revocation . g:iven by a Court of the Somali Reipublk, as weH as: by . for-e!gn
Oourts which have been recognized' in accordance with la\v . .
of ·security _.me<!-sUres
3. Extracts of orders or other measures concerning .foreign or
1. Security measures shall be ordered by .a Court together with stateless persons ·shall be kept separatdy in th.e Criminal Records
the ·,'. judgment" of conviction or the wder that , proceedings ·be O.ffice. ·
terminated. I
I
2. · In the cases referred to in paragraph 2 -of Article 165 of Ar·ticle 261
the Penal' Code, security mea1Sures shall be ap-plied, at the request \.
1· : Orders relating to criminal proceedings to be recorded in the
of the Attorney General, in :the manner provided for matters aris-
ing in executi-on, by · the President of the Court which has · passed I Crlininal Records Office ,
the judgment of convicti'on or the order .that proceedings be
terminated.

3. lnsoJar ,as ··ap·plica.b!e, the provisi,o·ns of paragrnphs 2 and 3

I
:
I. In the Criminal Records Offic,e there shall .9~. r~corded ex ·
· tracts of :

· of Article 223 shall apply. · i- (a) conv·id.ions . which have become final;

(b) ·ord·ers which grant or revoke rehabilitation;

NOTES
I I
(c) any other measures relating to the application, rnodifi-
c·ation or revocatio,n of punishments, securify mea'sures
(I) This Article deals with the procedure [or the a,p·plication of I and benefits . provided by law. - ............ ~.
.security measur-e!:> and should be read .tog,ether with Articles
161 to .183 of the Penal Code.
I 2. There shall not be recor-d,ed in the Criminal Records Office
I convictfons for contr!lventi-ons for which it is permissible to pay
· (2) · Articles· 161 to 181 o-f the Pena,! Co.de rela,te to se:curity meas- the fine to the administr-ative a·uthorities or which may be com-
.ures in r.espect of persons and Articles 182 and 183 m respect of
property.· pounded .
\
 Ar-Hele 262 Article 264
Civil and administrative matters · to be recorded Forwarding of the record card

In the Criminal Recrods Office there shall als·o be recorded 1. As si.oon as the -record card has been completed, the Registrar
' - abstracts of : _shall forward .it with an accompanying note to the .Criminal Re·
fords Office where the note shall be signed a·nd returned to the
· (a) as r,egard,s civil matters: Regisfrar as a receipt. ·
(i) final judgmenls declaring partial or total inca,pa-
dty or final judgments revoking such declaration; 2. If the person to whom bhe record refers ha,s no previous
convictions, the Registrar shall prepare and send: a second copy
(ii) orders issued by a Civil Cour-t for the committal of the record ea rd.
o[ a person to a mental hospital or for the revoca-
tion of such order; 3. .If the r-ecor-d refers to an a Ji.en, the Registrar shall prepare
and transmit another copy of the record ca11d, which .will then be . ···.:i
'
(iii) judgment of bankruptcy; ·.~
sent to the Government of t,he country of which the aHen is a
(bT~;d~inistralive orders relating to the l-oss of citizenship citizen, i-n accordance with international conventions or' by way
and to -the expuls.ion of aliens. of reciprocity. ·
.,,.

ArUcle 263
Article 265
Record cards
\;
.!·
Maintenance of .the record cards . . ... . : ~ .~. .
l; I. ·.. Ab:slracts . of the or-ders or jud.gments referred to in the
;
;: 1. The record card, as s·oon as it i1s received by the c·riminal
1·
preceding Articles sha 11 be reoorded on appropriate cards by the
Registrar. of the Court in whiich the judgment or order became Records Off-ice, shall be registered in the Register maintained for
r' · fina1·· or, in the case of appeal , by the Regi,s trar of the Court this purpose.
i
whi ch decided the m·a-tter in the final instance. 2. If the . record card refers to a person who has· no prev-ious
2. A separate record card shall be maintained for each person oo:nvictic:ins 1 the Crimin.al R1ecords Office shall pliace one of the
and for each proceeding. If a person has been co.nvicted of copies of the card in a file indicat.ing the personal detaUs ofthe ·
more than one offence, a separate reference shall . be ma,de on the person concerned, his fingerprint classitica-tion, the ser-ial number
ea rcl for each such offence in the or,der followed in the judgments of the file, and a reference to the recor,d card . .The other copy of .
or orders. the record card shall be kept by the fingerprint archives. · The
Criminal Recor.ds Office shall also prepare an index card contain-
:l. For record purposes, the Registrar shall use ·a form, · to ing . personal details of the person, Ms finger,pr,int class.ificatiori
be · provi d~d by the Pol.ice, con.ta.ining the finger,prints of the and Hie number of hits file. Such -cards also shall be maintained'
···.
per so n concerned. in ap,pro,priate filing ca-binets in al·pha-beHcal order.
4. TfiY 'fetord shall be preparec! not later than 10 days aHer
the ~r der or judgment has become fi.nal. A reference shall be 3. If the r_ecord card refers to a person who has previous con•
made on llle original of the _order or Judg1ment that the matter v,ictions, it shall be put ,in such person's exis-tinf file, after having
has been recorded in the Criminal Recor,ds OHice. made the necessary reference on the file cover. ·
 r

- 274 - 275

Article 266 Article 269

Destructi.on of Cl;!nJi.Qal records · Entries no.t to be recor.ded ,on a certificate issued to a private
<\ :. ; ' ·' . I .person
'. L;:'; Cr.iminal recwds of a person shall be destroyed upon offi·
ci*:l ~ot_ioficat-ion of ,stic_h person's death or aH-er 80 years from the In a cr'imina,1 record certificate · issued to a private person
~·~te.' of:b'ii:th of such 'person. upon his'. own 'request, ..no mentLon shall be made:
~}~{,~·.:. :·'·:~ ;,r· \ .'. . . .·... .. . . .. .·
2:,:::; .-. The foJlowing ;criminal ·records shall also be. destroyed :- (a'} o'f con':"icti,ori~ in ·thidollowing cases :-
:-.' t 5!; 1/,1;:. ·.i i ·· \'. , . l:: ·.. ·... .. . .. '• .. .
'.~~a i\;'.} ~)J.thos~,: that'. record: a~ .6r_d ~r or judg,me.nl' th~·~ ~as ·'11ready (i) when. a-: conviction has been s·et aside, and the
i;grt ' i:'\ ?~.nt d:~t: .r~oorded'. .: ·, . •· ,' .
,r'

accused .. acquitted in revision proceedings;

1 .
;:}{,; :.(~ )j ~r~rni~~}: ./ ecor?s . ipS9rrestJY ·attrib)lted_ to, another ·per-
I

l<?Pl
' J,. . {
·:, : ··'*'
1
•
son~
. I ,•. .,• result of '. mistaken · or false 'i-delitification of
'las·' aY f ~ . • . ' ·" . I ,, .. , •
(ii) . when the person concerned had not yet attained
'11(1 '''.:,..;.,~ilie :person': conc·erhect Sor ·a·s a result .of an. error in the · ei'ghteen years of age at the time he committed
'.<\ (• ;· ·Hrecofd. ~( the Court p~oce.edings, prov-ided that the judg- an offenc.e for which he was convicted to a fine
·,: · meni or onder on the basis of wh1'Ch the r,ecord has been or imprisonment alone or jointly with another
. - ..-:,, .
· made has been corrected by a subse·quent decision . punishment, not exceeding 6 months' imprisonmen t
.for .a .crime or one year's imprisonment for a con-
I:> ; The Off-icer~in-Charge -of th~ Criminal Records Offi'ce s.:hall tr.ayention, :provided the person concerned has not
·einove ea-eh ni·onth all record -cards from the of•f,ice which are due been subsequen:tly convicted to imprisonment;
o:·be d~stroy~d, making a reference to the . card in the appro-
>riate reg·ister;
' !
· . ,(Hi) when ·an ·offence of which a person was convicted
' •' ' has· been -declared . extinct or when the person has
Art.icle 267
been .r~-habilitated a.nd such .rehabilila lion has not
beei:I s.ub.sequently rev.oked;
Certjfkate ito be issued .fo Public Authority a
~ • 1 ! .
·{,b) of any measwes referred to. in Article 262.
;if" A Ju.ctici~1.A'uthority,shall · have tihe ri·ght to obta·in, for ju-
i~J. ~t ·.purposes:, a certificate showing the cr!,i;nill'al rec-ord concern-
1.~~cHiy, j>~rs~tj.. : · ··.. _. ·, ·· · · . Article 270
)
}i:}:T.h;}b,J?i1 i µ~~; ;·~h~s·.~~aJ.1.have the san~e r,i,ght when a cri- Requests ;for arif issue of criminal record certificates
!.jp.~~/ ~c4rA:/ 1rt_ifict te, is ,req).lir~d) or oHkfaLpur-poses in resped ·
rt\he· p~iJo.JJ;.,cc,>n.cer,ned . . ·. .. .... - .- · ··; . : · · · 1. A request for a criminaf .record certificate ;hall be addressed
t :·,· '.;:"-';'t :'. l ·,. :.,: ·:. . ' to · the · Criminal Records Office. . In the request · there sha 11 .be
shown the name . of' the person. concerned, the names of his father
ArHcle 268 and mother, the date and place of hi1s birth and any other clelail s
I .,.. . ·. . .
Cert1f.icates issue:cl Jo private persons ·which may identify such ' person including, when necessary, his
fingerprints. · ··
\.' ;'. I ·. ,. • ;: ' • \ : • : • . . • • •

/;;.~With~µt ,h~ving to . give any reason t·herefor, a· perwn shall ·

1vi{the~t,i,gM\to obtain a criminal record ·Certi1ficate concerning·· . 2. A c·ertificate shall be issued by the Officer-in-Charge of the
'ndrorri the Criminal Records Offi·ce. Crimipal Records Office.
/\·>; .
 l
If rio ~-riminal records exist concerning a person in the Cri-
1
Chapter VII
minn l Recrods Office, or i.f there are only such recwds .as are :I:.. . . · EFFE~T OF · CRIMINAL PROCEEDINGS oi-( c1v.1L,
prohibited by l·aw from being disclosed-, the Officer-in-Charge ..

shall write on the certificate the w.ord <~Nil». · Otherwise the Of- ADMINISTRATIVE AND DISCIPLINARY PROCEEDINGS
ficer-in-Chnrge shall write on the certificate details of matters ':,!,
recorded concerning such pers,on in ohro~J.Ological order. , .. Article 272
. '

When . entering the record of criminal conv-ictions, besides· .:1-~ ,' S~spenslon of civil , administrative or disciplinary procee'dh1gs · .
mention of the date and of the Court whkh pr-0nounced the sen- -~
tence there shall also be sho.wn the type _of· offeIJ.Ce, the fine .or ''f
'd ' . . If criminal p-roceedings are instituted ag~il).st a person, and
imprisonment inflicted, any accessory penalty, any security mea- -~ _the result of ·such proceedings may affect a civil, administrat_ive· or
i
sures and any benefits which may h,rve been granted. . '! . di,sciplinary proceed.ing, the ' latt'er shall. be suspended, unless i.t
The Officer-in-Charge o,f .the Criminal Records Office shall
•i
I
'' -is' provided ,otherwise by law, until the ' judgment ·.kl,. ~he crimin~l
·..·.
· .• ,·
nlso, in such certificate, show the date of issue,. affix his signa- ~ ' proceedings or the order that crim,inal prboeedings be ter-min.ated · !''• ·... ,
,; has become final or until an order that the case · be clos!:!d has
ture ancl U1e stamp of the Criminal Recor·ds Offioe, and make a !
note of the issue in the ap:propr.ia!te register. l' _been issued.

3. A certificate issued by the Criminal Records Office to a l

.
I
•..
privnte person upon request shall be written on stamped pap·er.
l[ n certificate issued by the Criminal Records Office requires
authentication, the signat-ure of the Officer-in~Cha.rge shall be
l
i
j
Article 273
R~latlons b~tween criminal proceedings and civil action ·

.,' nuthenticated by the A.ttorney General. No civil or ,adiministralive action may ·be initfated, cont.i- ·
.! ~ ; ;
·] nued or brought up again where, in the course .or a criminal 'pro~
1 ceeding, a Court has d·eclared that : · · · ·
Article 271
i1
Disputes regarding entries and criminal record certificates (a) the act was not committed;
1
·:J
(b) ,the a,ccused did not commit it;
In case of any dispute regarding any matter arising out of (c) · the act was committed :
the · preceding Articles, or if correction of any records or certifi- -!
cates issued by the Criminal Reoords Office is requested by any ·l (i) -in the fulfilment of a duty; or
person;· the Attorney General shall make a decision upon such i (ii) ·in the exerciise of ~ lawful right;
matters on requeset of the pernon concerned. If the person con- J
cerned wishes to contest any decision by the Attorney General , I' · (d) there was · not sufficient evidence to prove that:
he shall have the right to do so as a matter arising out of exe- 't · (,i) the ad was committed; ·or
cution. l (ii) the accused committed it.

ll NOTES
, · ::·.

.t Sub-paragraph ( c) : According to paragraph 1 ·of .Article·

33 of the Penal Code, nothing is an offence which is. done in the . .. . .

L exercise of a. right o.r in the perform·ance nf a· duty -imposed by: ·: .· ·.., ,._
. .
...
. . . .
~
. . : ;;
. ... ·. \ ,

1
I O o'
1,&it\r ...,.· · ·.(· · .. .
r};M/!):,u:~i :f·:··'. :. · . · . ·· · . ·
~~l;:.~!ri..\}:-: :,· ·,-: ··.-:\·> .<.,:. ·.· ~
5 ~ ,,::;:;;-:~!:%~:/}Thj~: Ar;tid( dic;lares· that .in' such cases, no civil, or. ·ad-
27 8
·; · · .. . . . ). . -
279 -
shall operat~ a,s res jtidicata. The expressi,on «res . jitdicabm> .
:~'( ·}' ·wJf,,:{i;:JijiP.i},t,i.ati_ve
,J'• ';., • • ', 'I ' • ,'
::a·~t!9.~ ·, ·m~y be 'initiated, continued or brought ,up . means a thing adjudicated. u.pon or a matter on which ·judgment
r,"':.t 1
. . . , .., :...: ,.. ...
0
f
~},?.;,,:i;:·
j -,:aga1_n.,::< , .,,.

. . . · ··,o ...
f / ' ' •

has bee.n p_ronounced.

~:.itYJFij}~.:?\'··.·· ,;.:\i/; .( . . ·, · · .. ..
1t~ff'_.;;,'.~<·:;i :./;\;.:·.··. ,: :'{, ·,. ·.· . . 1LLUSTRATI0N: . ILLUSTRATION:
~~i:lf.:Jf~~:. ·?1:l' t/~;; ·~;.:~:·i .:·:..:~:·:-\:·::·:. · .- ' · ·.
1 · ' · . '
}:;,j~:) i.,'.:'-:i'.·~/)c~·,:~;p.o~fo:e pmcer, is charged with offence· of illegal _arrest . -r . /. . X files a claim -again~,t Y fo~ compensation for damage cau- .
~;~'.:\?·::~ ·of •. Y. 'und~r · Article ·46.\ :of,· the Penal Code. In the course of- the · sed to· X's car alleging that it was Y's negligence tliat c,aused the
J.r.f;);'/:·.:c.f._t~J~·~J).roG~e:ding, the Co~rt come~ to the . co1'.clusion that X _.· collision between X's and Y's cars"'which resulted in the damage.
::,t:fi:':,.,>\:ac_te·d\'>in_: ~h~ .fulfilm~n~ of ~1s du~y m arr~stmg Y. In -~uch a · · In criminal proceedings ,against Y in respect -of . the ·incident in
f·::·,:•,:· · ., case,.no. . c1v1t :or adm1mstrabve act10.n may oe brought ag.amst X. question, Y was finally acquitted o.n the ground : that . there was
.no negligence on his · part This finding sh~ll oper~te ~? res
ft$\i::;,;/·'.\ -·,-'.:. :.' . . · . ··f,,. · Artie!; 274 . . . . judicatia .and will debar .~.he civiLCou.rt from go:ing:,i,nto 'the matter
of neglig~nce of Y. · ·
/)\{;l.:::.:'..':' : :.\.'::· 'Effe.ct of judgme.ht ·in criminal proceedings ·
(/i?;t,:,:~~)4!.. ·., . · .
;~;t'.·/ };: L:.·. ·In· . ~ · .ciyJI. ,qr . administrative proceeding for PesUtution ·
,\.. :. ,:,.: , . or; compe'gs;ltio'ri for damages, a fin.al conviction or a final jupg'- · . / '
· · · ·jnenf.ot"acqui.tt11l,:and, a final order that proceedings .be term.ina~.·
. ted, ·shall h:ave 'foe ·author.ity of res judica~a as rega.rds :

~;r ,__;•_
:; : :::;::~:~:.:,! ;·1~:~;:1:.:: :;!~:.:::
· ,;· .';:., (c) the. responsibility of the accused.
committed;

/Jj;:;,:.i.\:. '..'. A. final . judgment . in a criminal proceeding granting . judi- .. ·:.... .

1ft;'.'./ \· d~l par~on . sh·~u:.:also-hcJ.ve the authority ·of res Judica~a as re-
:J(i:'.:\·: ;. :: g·~ ¥~:/ ci;Vi(or adrriinistrntiv,e proceeding. . .
:tt::t'.-:\:2-'.\: '/~a-~t from the cases· me~tioned in the preceding parag.raph, .
·'.1'l:, •: ·. • ., (1~ •• .· • • ·' ..... •. • ' •

~-t:,·~·;> .•::.·..the 'dec1s10ns··referred to therem shall also have the aut)10nty of

't~~';}f<·:>ris'.- :judicata. in· civil;'° administrative or discip'linarY proceedings .·
1
] J.\:"}:whe1{tlie: dtspute , relates .to a·. rigM the recognition of w,~ich de-· /
:iiff;:.;\·}/pe~.a:s.,·:on . the ..asc~rtainment of facts which were ii}. issue · in . the
')/~f::?' criminid proceedings. . .
~·~\·: ~\:. :. :.. .. : . . . .. ;
·...
...... '· ;·: . .,......, '
·.
. . ··.:·.··:{· ..
, : , !, .I, NOTES
·~/l:'!~{·.. .. : :...>:;~ ~: \ :'·. ;! -: .• . :. ... . ' .

&}:;\·; \ :/i;.:· \·Paragraph .1 t According to Article 158 of 'the Pen?! Co'de

·tfJ::jtF~fr:. oHe·i;ce:·sha_1_1· _erit.ail .the obliga uon tp make re·stituu~~· o~.
·',;!/~,:( ·::\comj)ensat1on, for.,. damages. This paragraph .declares that m a._
/:' .~-~J'.f.·clvi( ior :-C adlministrative proceeding for restitution ·. qr· · corn~ .: \
,.). :(. / p~µ·saf.t:9~·..fo:( dain:ages·, _.a, fi.nal judgment ~r order ~ela_ti_ng ~o.,con-
,:<, :.~:, v1ction 1 \. a~qu1ti:iil, t.ermin-ation of proceedmgs or- J.Ud1c1al i)ardon ·· · · .
:.r.-:\~!·:·~/:: ·':;-... ·< ,. .. :._.·. ~ .. . \
:: ··· .: ...
 --- -- .l () 1

BOOK FIVE
JUDICIAL R.ELATIONS, WITH FOREIGN
AUTHORITIES ;
FINAL PR.OVISIONS

PART I
· JUDICIAL RELATIONS WiTH FOREIGN AUTHORITIES
. '·.
.._; ,· :-,,. .
. C::h apter I
·GENERAL PROVISIONS

Article 275
General rules
1I . 1. Extradition may only be granted subject to prior interna·
· tiional conv-ention, in accord,ance with the prov.islons of such con-
vention; and, when no provision is made therein, in accordance
with, the provisions of this Part.
2. International letters roga.tory on criminal matters, recogni-
tion of foreign criminal judgments and other relations with for:
eign judicial auth-0ritles ·regarding criminal matters shall. be gov- ·
erned by internaHonal conventions and customs and, ·where no
\ ·i .
.--~ . I provisi·on is made therein, .in accordance with the rules of this
.· i ·, ! .·
L Part.
j.·

NOTES

(1) Parii.graph 1: The term «Extradition» according to Black's

Law Dictionary (4th Ed., p. 698) means «the surrender by one
State t-0 another of an individual accused or convicted of an
offence outsi<de its own territory and within the territorial jurisdic-
tion of another,- which being competent to try and punish him,
demands the surrender». The procedure for extradition is pres·
oribed in Articles 278 .to 281.
(2) Paragraph 2: The term «Letters Rogatory» according to
Black's Law Dictionary (4th Ed., p. 1050) ·means a «request by .
one Court of another Court in an independent jurisdiction, that a .
:witness be examined upon interrogatories sent with the requesb.
Article 276 deals with letters rogatory to forelgnjudlcial autho-
rities and Article 277 with those from foreign judicial .auth-0rities: •- :'·..~ ~- ..
.,

.·,·,
·i
1rr:J;r:-
. -, .,
'I ;
:,-.":"
- 283 -

Chapter II ·. Chapter Ill

·- - · - ,· • • .J

EXTRADITION
'INTERNATIONAL
' . LETTERS ROGATORY
.

Article 278
Article 276 Powers of the Secretary of State for Justice & Religion
Letters rogatory to foreign judicial authorities in relation to extradition
._.·, ::.
1. i,etters iogatory from for~ign judicial authorities :regarding 1. The Secretary o.f State for Justice and Religion shall be em·
evidence · to be ' taken in a foreign country shall be transmitted powered to offer or grant the ex'lradiU,on of a p,erson accused or
~rough : d,iplomatic G_hannels. . convicted in a f,orei·gn country in cases where extradition is not
prohibited under Article 11 of ,the Penal Code, and he shall · est~b- ·_;_
/·
2. . In-urgent ca·ses, the Court may tran.smit such request. direct- I I l!sh the precedence when extradition is requested by . mo·re than
_., ~ .. • . ly to Diplomatic and Consular Agents of the Republic in a for- ·.. I one foreign country. .
ei.gn country, informing the Ministry of Justice .and Religion.
·:··~ .. ·:. I
:·.·... 2. An offer or grant ·Of extra,dHion shall always be made subjed
' I ~
·"3 . . ,; Summci,ns to a witness res.ident in a foreign country shall . to the conditi-o·n that the person to be .extrndited shall not be tried
:, . ,:.. .·be. t~ansmitted, jn, .the same way. for a di.fferent offence, n-or be subject to differen:t punishment ,
. . . .·. . ...
~ , :: . t :< : ... . . ot,her than fhose f,or which extradHion was . o.ffered · or granted.
' ' The Secretary of State for J:is,tiice and Religion may afao make
;{:/ ·,< ;·::( ·,:· . · .: . .. :~·' . . .
·.·'

'Article 277 the off.er or grant of ex.tradition su,bj,ed t.o · any conditio'ns whi,ch
,; · .. • . • i .: : , : ·• ,. -Letters. rogatory from foreign judlclal authorities. he shal-1 deem fit and proper.
_... , ' , '. :,:;,·'. l ·. . .': _ _.. . . ,. . . .

..1. L~tters. :~~ga.to~·y to foneign judicial authori.ties regarding NOTES

.. ·evidence fo be .taken ·within the terirtory of the Somali Republic
. .\ ha.it be~me executory by -order of the President of the Court of (1) Paragraph 1: This paragra-ph e:mp,owers the Secretary of
· 1.· Appeal', after having heard the Attorney General, prov.ided that -the State for Ju.s-tiC!e and Religi-on to grant extradition in oases whi,ch
· · :takin'g ci.f ~uch _evid ence is not contrary' to the general principles are not prohibited by Article 11 of t,he Penal Code. Accor-ding to
the said Article, extradition shall not be granted:
of law of the State.
,.
(a) unless the act which giV,es rise to the demand f-or ex-
;....
'.. \ . Th~ iP~i·?<ident ~f the. Court.of Appeal shall .either take/the_ ~ tradition is an off.enc€ under the Somali law · ancl the
,... . · · . ,evidence· himself or- direct that it be taken by the Regional or foreign law;
· ·,District-C0urt :within ·whose jurisdiction the ne{;e~sary action has
'to ·btd~ken. : . ·. . . .. . (b) in case of p.o!Hical offences. A political offence, accor-
d'ing to paragraph 3 of Article 8 of the Penal Code, is
.2. A summons to .witnesses resident ·withi'n• the terrHory -of the one whi'ch in whole .or in part, is actuated by political
motives.
. . · .S9°iri'ali 'Republic, .n'!quested by foreign judicial .authorities, shall
.· .· . : .·be 'se'r:ve·d cHreetly by the Attorney· General. ,. · (2) Paragraph 2: Under ·the preceding paragraph, the Secre-
·· .·.• -i ' . . ::.· · , ;·:',:: . ... ·-:.· . . . ..
tary may make the grant of extrad,i,tion subject to aryy conditi-011,; . ··
('. ..: .;.. ,i .. \ividen·ci.~hall ·: be tilk en and 0

summo.nses shall be •served j·~ which he shall deem fH and proper but the following. conditions
are obligatory:- · ··
:{}.\"': ·. ::co!l.f~.rmi~.Y ,'v{i\tj ifu,\!.':ge~eral, prpvisions of t~is Co.de,. . . •: .
\ .
 -0•.)

(a) lhal the perso.n to be extradited shall not be tried

for a differenit offonce; · Article 280
(b) 11or shall he be subj.ect to different punishment
Procedures relating to extradition
·.···
Article 279
1. H -the President of the Court of Appeal decides that extradi-
Judicial guarantees
tion shaft oof be granted, he shall order that the accused or con-
victed p·erson, H hre i,s nnder arrest, be re'leased immediately.
I. 'Flie cxlradilion of an accused or convicted person to a
:~nig11 country may be granted only subject to a f.avourabl,e deci-
;'.on of the Presid-ent o-f the Gourt o.f Appeal wi,thin whose jurisdic- 2. Wfrere, instea,d, the Pres,i•d.en1 of the Court of Appeal decides
ion such person is found, having heard the Attorney · General that extra&tion be granted, the accused or convicted person. after
,ncl lhe person to be extradited. The request for ,extradition shall the iissue o·f a warrant of arrest, j.f necessary, shall be placed at
·1e made lo the Presi,dent of the Court of Appeal by the· Secretary the dfsp,osal O'f the authori,ty which made the request for extra-
of Stal.e for Jus.lic·e and Religion. d-itr-0n.

A11 order of extradition may be appealed against to the 3. Extradi'tion shall be su1spended if the person to _be extradit-
Sup~eme Court both by the accused or convicted person and by ed has to be tr.i·ed in, or has to serve a sentence in the Somali
'Ii,· .'\lJ0~11ey General. Repub'li:c, unl,ess otherwise decided by the President of the Court
of Arpeal.
:11 '.lie c;ises where the pers•on to be eX:tradited h·as to be
:i:·reslccl, the President of the Court of .Aippeal shal'l issue a wa-
. ,-,,:.t · .
rrant of arrest in accorda.nce with normal proce,dure. Article 281

3. Such warrant of arrest shaJI be revokied ,automatically · and Extradition from a foreign country
the arrested pers·on shall be released if:
I. · When i·t i·S necessary to make a request for the extradition
(a) within 60 days from the date of the arreS!t, where the from a foreign country of an accused or convioted person, the
reques.t for extradition was made by an African State; or President o:f thre Court of A.ppea l, wHhin whose juriJSdidion the>
criminal proceedings took place or such person was convicted,
(b) within 90 days from the date of the arrest, where the shall make such request to the Secret.ary of State for Justice and
request for extradi'tion was inadie by a State outside
ReHgi•on,, transmittin,g to him the necessary d.ocurrnenta-tion. No-
Afrioa,
tice .of such request shall be given t-o the Attorney General.
the Secretnry of State f,or Just<ice and Religion has not received
ll1e. d,ocu111cnlaliori in suppor,t of the request f.or extradition. 2. Request for exlradH•i,on may be made by the Secretary of
. : ·. . . .
State f·or Justi'oe & Religi•on on h,i1s own initiative, informing the
· . Stid1. time-limit may be extended, at the request of the Stale competent Court of Appeal and lhe Attorney General.
w!1ich asks . for the extraqi,U.on, only once and for a period not ex-
. .:L'L'rli11[_! u11e 111011th. · Such extens-iion may be granted by the
St1 1Hc111L· Cuurl. upon request by the Secretary of Stale for Justice
:111d l<c'.igio11 .
 289 -
- 288 --
3. In other cases, the a,ppli,caHon may be made by \\'l10l'vc1·
(a) the convicted person was not summoned to appear at has an interest in it to the President of .the Court of Appec1l will\·
the trial or was n.ot provided with a defence Counsel in whose territorial jurisdiction the civil provisions CUl1\ ilil1C·\I ill
in the cases in which, a,ccorcling to Somali' law, a de· l,he fore1,gn criminal judg.ment should be enforced .
fence Cou!'lsel is mandatory;
4. Insofar as applirnble, the provisions of p11rc1gr,:1ph ~ I. :2 :111d
(,b) the juclgment has not become final in acc·ordance with 3 of the preceding Artide shall apply .
.the law of the S.tate in whi,ch i,t was pronounced;
(c) l,he judgment contains c111y provisions w,hich are con- PART II
lr.ary lo, or i11co111JH1lible will1, any provi1sions · of the FINAL PROVISIONS
Con;stituHon of the Somali Democratic Re,publ,ic or any
of the general princi1ples of the law of the State. Article 287
2. .The Presi·dent of the Court of Appeal shall make his decision Power to iss111e Regulations
whether t,h.e Jud•gmenit shall or shall not be aJl,owed following the
procedure for matters aris.ing in exewlion. The Secretary o[ Stale for Justice ,1ncl Re.lip;Lo11 111ay b:;u v
the necessary regulations for the implemen:tnti·on of this Code .
A party concerned or the Attorney General may appeal
against such decision io the Supreme Court. NOTES
3. After recognition of such judgment has been allowed the
Regi&trar of the Court of Appeal shall send brief details of the (I) As far as is known, no Regulations under this Arliclc ha\·c
Court'-s decision to lhe Criminal Records Office. been issued by the Secretary of State for Jus,tice and Religion.

4. 1f no mention is madl' in the cl-erision allow.ing rec,ognilion

(2) By virtue of the provisions of tile General L1w go\'j' r11i11g
the issue of l~egulaHons (Law No . 47 of 18 August, 1970), an y
of the jud•gmen.l wil·h regard to anything that may be done as a Regulations under this Artide shall have to be issued by decree
result of such decision and if no merntion is made regarding any of the Presklent of the Supreme Revolutionary Council on the
security measures which may be applied, the Pres,iden.t of the proposal of the Secr,e tary of State for Justice and Religion :
Court may order such provisions la.ler, upon the request of the
Attorney General, 'following the proceclure f·or matters arising in Article 288
execution . Abrogation

Article 286 The following ,are hereby abrogated :...:..

Recognition of civil provisions contained in criminal (a) I.he Italian Criminal Procedure Co.de;
judgment in foreign countries (b) the Criminal Procedure Ordinance;
(,c) the provisfons regarding cr,iminal proceedings cc)n,lained
I. Civil provisi,ons contained in a criminal judgment in ti in the «Ordiname·nfo Gi·udiziario)) approyed by Ordin·
for-eign country whkh provide for restitution, or compensation for a nee No . 5 of 1956, and in the Indian Evidence Aci , 1872; ·
civil dama.ges may be recognized and enforced in the territory of
(d) Regulations regarding the Criminal ·Record~ Offic e
· the Somali Democratic Republic.
approved by Decree No . 32 of 195G;
2. Recognition and enforcement may be granted al ,the instance (e) any othier provisi,on contrary to, or inconsistent with,
of the in'lereste.d pa:r.ty at the same time as the dedsio11 referred
1
. this Code .
to in the pre<:eding Article is passed by the Court.
 - 291 -

ADDENDUM

Since this Comment.ary Book went to the Press , the following

two modifications have been made:-

(I) Three more Judges ·hav·e been appointed to the Supreme

Court by decrees of the President of i the Supreme
Revolutionary Council dated 29 March, . le73. This means
that the Supreme Court now consi-sts of !the President,
the Vice-President and sev·en other Jµdges [ ·

(2) Article 10 of the Law on the Organisation of the Judici·ar~( ·

has been amended by Law No. 80 of 6 December 1972, .
by substituting for .the second sub-paragraph of
paragraph 2 then~o[ the follow,ing :- '
: 1. . .
«Whene the judgment appealed a'g,ainst is . set ·aslde,,
the Supr·eme Cour,t in,ay ,decide the· \.case .finally;';,:
where necessary, by ta.ki,rig . addit.ionalj evidence :. · · · ·

Pr,ovi1dcd that ·in ·appeals where the p.arties are

res.ident .at the seat of the Court, th~ Court may ·
remand ,the cas·e · t-0 the lower .a,ppell;a.te Court .to •
take a<lditiional evidence when required land to decide ·
the case.» · · ··
.III
.. ,,.I

This would, impli,edly, mod-ify the provi1sio_ns contained

·i,n sub-paragraph (a) (iv) of paragr:aph 1 of Article 233 ·
of the Criminal Proc,edur-e Code.
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