The Unfinished Mandate: Institutional Inertia and Constitutional Deferral in Somaliland’s Penal Law Reform
This study argues that Somaliland's penal law reform remains stalled due to a self-reinforcing cycle of institutional inertia, legislative delay, and legal pluralism, which prevents the reconciliation of the outdated 1962 Penal Code with the 2001 Constitution and undermines public trust in the justice system.
Original paper licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). This is an AI-generated explanation of the paper below. It is not written or endorsed by the authors. For technical accuracy, refer to the original paper. Read full disclaimer
Imagine the law as the operating system of a country, the invisible code that tells everyone how to behave, how to solve arguments, and what happens when someone breaks the rules. For a long time, many places have been running on an old version of this software, one that was installed decades ago by people who aren't there anymore. But the world keeps changing; new types of crimes appear, like digital fraud, and new ideas about fairness take hold. This paper lives in the world of political science and legal studies, specifically looking at how countries try to update their laws. It leans on a few big ideas: Institutional Inertia, which is just a fancy way of saying that once a system gets used to doing things a certain way, it gets really resistant and hard to push in a new direction; Path Dependency, the idea that the path you started on makes it super expensive to switch tracks later; and Legal Pluralism, which happens when a country has to juggle three different rulebooks at once: the official written laws, religious rules, and traditional community customs. Why does this matter? Because if a country can't update its laws, people stop trusting the police and courts, and justice starts to feel like a broken game where the rules don't match reality.
This study zooms in on Somaliland, a place that has built a stable government since 1991 but is still running on a criminal law code from 1962. That code is like a manual written before the internet existed, before modern human rights ideas were popular, and before Somaliland even had its own Constitution in 2001. The researchers wanted to know: Why hasn't Somaliland fixed this? They didn't just guess; they interviewed ten practicing lawyers in the capital city, Hargeisa, and they carefully read the old 1962 law alongside the 2001 Constitution.
The big discovery is that the problem isn't that nobody knows the old law is broken. In fact, everyone agrees it is. The lawyers all said the old code is useless for catching modern criminals who use computers or commit digital fraud. The problem is a "self-reinforcing cycle" of delays. Think of it like a relay race where the runners keep dropping the baton. The Law Reform Commission (the team supposed to write the new rules) is weak and under-resourced. The Parliament is too busy or disorganized to pass the new rules. And the Courts are stuck trying to apply the old rules without causing chaos.
The paper suggests that the Constitution actually has a specific instruction, Article 130, that says, "Hey, if the old laws don't match the new Constitution, you have to fix them!" But here's the twist: that instruction doesn't say when to fix them or how fast. It leaves the timing up to the Parliament. Because the Parliament is already slow and stuck in old habits (the inertia), they just keep waiting. The author calls this "Constitutional Deferral." It's like having a to-do list that says "Clean the garage," but the list doesn't have a deadline, so the garage stays messy forever because the people who need to clean it are too busy arguing about how to start.
The study also found that the situation is complicated by Legal Pluralism. Somaliland doesn't just have one rulebook; it has the official law, Sharia (Islamic law), and Xeer (traditional customary law). The researchers found that while the official 1962 law ignores these other two, the people and the courts actually use them. The lawyers interviewed said that any new law has to fit with Sharia and Xeer to be accepted, which makes writing a new code much harder. It's like trying to write a new set of traffic rules that has to make sense to the police, the religious leaders, and the village elders all at the same time.
The paper explicitly rules out the idea that the problem is a lack of good ideas or technical skill. There are already high-quality drafts of new laws sitting in drawers, written by experts with help from international partners. The problem isn't the writing; it's the politics and the institutions. The author is very sure that the old law is incompatible with the new Constitution, especially regarding freedom of speech, and they are sure that the lack of modern laws (like for cybercrime) is hurting public trust.
In the end, the paper suggests that Somaliland can't just "try harder" to pass a law. They need to break the cycle by giving the Law Reform Commission real power and a strict deadline, forcing the Parliament to act on the Constitution's own instructions. Until they do, the country's legal system will remain a patchwork of an old, outdated manual, a modern Constitution that isn't fully applied, and a public that is losing faith in the system because the rules just don't work for the world they live in today.
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