CHAPTER ONE: INTRODUCTION

1.1 Background of the study

Generally the criminal law fundamentally depends with two important elements: Actus reus ( the

physical element) and the mens Rea ( the guilty mind). Between these two elements, mens rea

plays an important role by determining the criminal liability. Because it proves the moral

blameworthiness of the accused. In modern legal system legal obligations are rarely imposed

without proof of the guilty mind, except in some cases with strict liability.

In the context of inchoate crimes such as attempt, conspiracy and incitement, the importance of

proving the intent is more pronounced. These offences criminalize an action that falls short of a

completed crime which means that the intent often carries greater weight than the Acton.

The Somaliland penal code same as ( somali penal code)which is originated from Italian penal

code of 1930, contains general provisions on criminal intent and attempts( Article 17,24..) but it

does not always provide a clear guidance on how intent should be assessed particularly in the

context of incomplete crimes.

This ambiguity compounded by the scarcity of published appellate decisions from Somaliland

courts, leaving legal students and scholars with limited local precedent.1

1
Somaliland penal code (somali penal code),Art.17,24…

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Further more, the evolution of criminal law in Somaliland has been challenged by significant

lack of published court decisions. In civil law system, while statutes are the primary source of

law, the interpretive guidance made by higher courts is important for consistent application.

Without a centralized and available repository of appellate rulings, judges, prosecutors and legal

practitioners are left to interpret in 1930s language through a modern lens without the benefit of

past, which led inconsistencies in how mens Rea is measured in the context of incomplete crimes

( inchoate offenses).

1.2 REVIEW OF LITERATURE

The doctrine of mens Rea and inchoate offenses has been widely examined by scholars who

concentrate the importance of a purpose or specific intent standards. Ashworth and Horder

(2013) argue that because inchoate offenses involve punishing the persons for what they

intended to do rather than their action, the level of intent needed should be higher than that

needed for the completed crimes. This viewpoint is necessary for understanding the Somaliland

context, where its penal code often combines the different types of intent.2

In the region, the evolution of criminal law in Somaliland is seriously affected by what the

Horizon Institute (2016) described as an outdated legal system. The report explains that the

formal justice system still depend on a mixture of laws inherited from the British Protectorate

and the 1930 Italian-influenced colonial Somalia ,which have not kept up with modern society.

2
Ashworth,A., & Horder, j. 7th ed. ( 2013 ). Principles of criminal law. Oxford university press , p.23 of 39.,and 26
of 37

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This reliance on a complex mix of old laws make many legal experts agree that the Penal Code is

urgently needs reform to address contemporary criminal justice challenges.

Furthermore, the judiciary also faces a gap between different legal systems where the formal

system, Sharia, and customary law (Xeer) often overlap without clear boundaries. This lack of

coordination means that the laws are often applied inconsistently and depend on personal

judgment which directly impacting how fundamental legal concepts like "intent" and "liability"

are interpreted in and applied in real cases.3

The Italian penal tradition — from which the Somaliland Penal Code historically derives —

conditions criminal attempt upon the unequivocal nature of the action. As Fiandaca and Musco

observe, punishable attempt requires acts that are unambiguously directed toward the

commission of an offence, coupled with direct intent (dolo diretto). Within this framework,

attempt liability presupposes a higher degree of intentionality, typically approaching direct or

specific intent, rather than mere foresight of possible consequences (dolo eventuale).4

The practical significance of this mental element is further highlighted in

contemporary empirical research. Mizel et al. (2022), in their study "Does Mens Rea

Matter?", demonstrate that the inclusion of a culpable knowledge requirement significantly

impacts the administration of criminal statutes. Their analysis of the Rehaif decision shows

that requiring proof of awareness—rather than relying on strict liability—can constrain

prosecutorial discretion and prevent over-conviction. This empirical finding supports the

doctrinal argument that mens rea is not just a theoretical requirement but a necessary check

3
Horizon institute, the state of the judiciary in Somaliland ( June 2016 ), p. 1.( Available at
[Link]).
4
Fiandaca & musco, 2012, pp. 103-104, 138-140)’(5th ed.).bologna, Italy, zanichelli.

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on state power that reduces "unjust" punishment.5

1.3 STATEMENT OF THE PROBLEM

The Somaliland penal code ( somali penal code) suffers from a significant degree of statutory

outdated and interpretative ambiguity regarding the mental element ( mens Rea ) needed for the

inchoate offenses such as attempt, conspiracy and incitement. The law does not clearly

distinguish between “ preparatory acts” ( early steps toward committing a crime ) and

“excecutive acts” (actions that directly move toward committing the offense). This lack of clarity

makes it difficult to determine when the criminal liability actually begins.

More importantly, the code does not clearly define the level of intent required to hold someone

responsible for these inchoate offenses. While the code contains general provisions on criminal

intent (e.g., Articles. 17,24), it fails to specify whether the intent required for those inchoate

offenses is the same as the intent required for the completed offence. Moreover there is no settled

judicial interpretation of the intent when the action is in complete. This ambiguity creates

practical difficulties for prosecutors, defence counsels and judges. Therefore, the risk of

inconsistent verdicts and possibly injustice arises. The main problem is the absence of coherent

doctrinal framework for applying mens Rea to inchoate liability within the Somaliland legal

system.

5
Mizel et al.(2022). Does mens Rea matter.

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 1.2 OBJECTIVES OF THE STUDY

1.2.1 General objective

The primary objective of this research is to critically analyze the doctrine of mens Rea and its

application to inchoate liability within the statutory and judicial framework of the Somaliland

penal code.

1.2.2 Specific objectives

1. To examine the statutory provisions of the Somaliland Penal Code governing the

mental element of attempt, conspiracy, and incitement.

2. To identify the interpretive challenges faced by Somaliland courts in determining

criminal intent for incomplete crimes in the absence of local precedent.

3. To evaluate the compatibility of the Somaliland approach to inchoate liability with

international criminal law standards and modern penal theories.

4. To provide recommendations for statutory reform or judicial guidelines to clarify the

requirement of mens rea in Somaliland’s criminal law.

1.3 RESEARCH QUESTION

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 Main Research Questions

What is the standard of mens Rea required for inchoate liability under the Somaliland penal

code, and how does statutory ambiguity effect its judicial interpretation?

Sub-Questions

1. What definitions of intent, recklessness, and negligence are provided in the Somaliland penal

code and how do the compare with common law definitions?

2. What elements constitute an attempt under the Somaliland penal code, and is the mental element

for attempt identical to that of the substantive offence?

3. What gaps or inconsistencies exist in the codes treatment of conspiracy and incitement regarding

mens Rea ?

4. Can principles of statutory construction derived from common law (e.g.,the “golden ruke”,

“mischief rule”) be legitimately applied by Somaliland courts to resolve ambiguities in mens

Rea?

5. What comparative lessons can be drawn from English and American inchoate liability doctrines?

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1.4 SCOPE OF THE STUDY

This study is strictly doctrinal and legalistic in nature. It focuses on the Somaliland

Penal Code (1962)—specifically its General Provisions on intent (Articles 21-24) and the

provisions on Attempt (Article 17) and Inchoate crimes (Articles relating to). Geographically, the

study is limited to the jurisdiction of the Republic of Somaliland. Temporally, while the code

dates back to 1930 (Italian origin), the analysis focuses on its application from the 1991

restoration of Somaliland sovereignty to the present. The study does not extend to an empirical

analysis of crime rates but focuses on the legal interpretation of statutes and available case law

fragments.

1.5 SIGNIFICANCE OF THE STUDY

This research holds significant value for several stakeholders in the Somaliland legal

community. For lawmakers, it highlights the urgent need for a modern penal reform that

clarifies criminal liability. For judges and defense attorneys, it provides a doctrinal

foundation for arguing and deciding cases involving complex mental states.

For legal scholars, it contributes to the sparse body of literature on Somaliland’s formal legal

system, helping to move beyond a focus on customary law to a deeper engagement with

codified law. Ultimately, by clarifying the limits of state power in punishing intent, this

study supports the broader goal of strengthening the rule of law and protecting the rights of

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the accused.

1.6 LIMITATIONS

The primary limitation of this study is the limited availability of published judicial records.

Unlike many neighboring jurisdictions, Somaliland does not have a consistently

updated law report system. To overcome this, the research utilizes secondary sources,

interviews with legal experts, and comparative analysis with the Italian legal system from

which the code is derived. Additionally, the language barrier presents a challenge; the

code exists in English, Somali, and Italian translations, with subtle differences in

terminology. This study assumes the English and Somali versions commonly used in courts

are the primary texts for analysis, while acknowledging the Italian original for doctrinal

clarity.