Comparison: How Did the Two Constitutions Address the Judiciary?

Introduction

Although the Provisional Constitution (2012) defines the process of drafting and reviewing the constitution within its Chapter 15, it has long remained provisional, and subsequent governments have been unable to complete or amend it since 2012. The first government established under this constitution, led by President Hassan Sheikh Mohamud from 2012 to 2017, and the subsequent government of President Mohamed Abdullahi Mohamed (Farmaajo) from 2017 to 2022, both failed to finalize the constitutional review.

However, President Hassan Sheikh Mohamud, who was re-elected on May 15, 2022, made significant efforts during his second term to complete and review the provisional constitution. Finally, on the date of 04/03/2026, the Parliament of the Federal Republic of Somalia held a joint session of both houses, approving the Constitutional Amendment, with 222 members present, all of whom voted in favor of the constitution.

After the parliamentary approval, the President of the Federal Republic of Somalia officially signed the constitutional amendment on the date of 08/03/2026.

However, the process of amending the constitution has sparked political debate and legal disputes, with the regional governments of Puntland and Jubaland and opposition politicians openly opposing the process and the legality of the constitutional amendment approval.

The debates and disputes arising from the constitutional amendment are ongoing and rooted in political issues, and it remains unclear whether the amendment will be implemented or annulled.

This article attempts to legally analyze and compare the Provisional Constitution and the Amendment and Review of the Constitution of 2026, particularly Chapter 9 related to the "judiciary," to understand the differences between the two versions, their similarities, and the extent to which each emphasizes certain aspects.

Overview of the Judiciary Chapter

Both the 2012 Constitution and its 2026 Amendment address judicial matters in Chapter 9; however, they differ in the scope of the articles, details, and the level of importance given to the judiciary.

The Provisional Constitution of 2012 discusses judicial matters in articles ranging from Article 105 to Article 109C, although some may think that the letter "C" attached to Article 109 is a typographical error, it is written as such in the constitution, and it consists of three sections: 109A, 109B, and 109C.

On the other hand, the Amendment significantly expanded the judiciary chapter, allocating articles from Article 126 to Article 149, totaling 24 articles, unlike the 2012 constitution, which generally defined the judicial system; the new constitution delves deeply into:

· The structure of the courts.

· The independence of the judiciary.

· The procedures for lawsuits.

· The powers of the courts.

· The administration of justice.

· The appointment and dismissal of judges.

· The Supreme Judicial Council.

Judicial Independence

Among the issues both versions jointly addressed is the independence of the judiciary, noting that the judiciary is independent of the executive and legislative branches, and they also mentioned that a judge cannot be investigated regarding their person or residence without permission from the Supreme Judicial Council, nor can a judge be prosecuted for actions related to their judicial duties. However, the new version strengthened the independence of the judiciary more than the previous version; Article 127, paragraph 4 states that the judiciary is independent in its administration and finances, and it is also mentioned in the same Article 127, paragraph 7 that even a judge cannot be spied on, which reinforces the independence of the judge. Additionally, Article 148 of the 2026 version established the Judicial Fund, which allows the judiciary to be independent of the executive branch currently managing the judiciary's budget.

Although both versions mentioned a council that manages the judiciary, which is central to judicial independence, the names they assigned to this council differ; the new version named it the "Council...