Research Directorate, Immigration and Refugee Board of Canada

1. Affidavits in Somalia

Information on affidavits in Somalia was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

The information in the following paragraph was provided in the US Department of State's Reciprocity Schedule for Somalia:

Applicants for a US visa should submit, in place of a birth certificate, an affidavit sworn "by at least two individuals before a notary public, lawyer, or attorney"; the affidavit must include the following information:

• place of birth
• date of birth
• full names of both parents.

An affidavit of death, sworn by "at least" two individuals before a notary public, lawyer or attorney, can be used as a death certificate if it contains the following information:

• place of death
• date of death
• person who confirmed the death (if applicable).

Affidavits of marriage or of divorce need to be sworn by "at least" two individuals before a notary public, lawyer, or attorney and contain the following information:

• where the event (marriage or divorce) occurred
• date of the event
• full names of the parties married or divorced (US n.d.).

The information in the remainder of this section was provided on 5 January 2022 by a Mogadishu-based lawyer in correspondence with the Research Directorate. The lawyer resubmitted the same response they previously provided in 2019.

Affidavits can be submitted as evidence since the affiant is stating that the information contained in the affidavit is true and that they have "personal knowledge" of the facts within it. In Somalia, affidavits are commonly used for the following purposes:

• Statements tendered in regional court, police stations, banks, and other government departments.
• Division of an estate in cases of intestacy (i.e. not having made a will before one dies). In these cases, the affidavit must be in accordance with Islamic law (Shari'a) and Somali customary law (xeer).
• Statements tendered in matters of family law (marriage, divorce, succession, etc.).
• [As of 2019], affidavits have increasingly been used to attest to ownership of property, given the significant loss, destruction, or falsification of tenure documentation during the Somali civil war.

Only a notary public or a district judge has the authority to administer a sworn statement such as an affidavit. According to the Law No. 7 Notary Activities, only the President of the Republic has the power to appoint a notary public. In addition, the Somali Civil Procedure Code grants "jurisdiction to the District Court to administer sworn affidavits."

In order to obtain a sworn statement, a person must present themselves "personally" at the office of a notary public or at the District Court in their district of residence. The following content is required in order to ensure the affidavit's validity:

1. indication in full letters of the year, month, day and place where it is received.
2. generalities and indication of the notary's office.
3. [personal information] of the person making the affidavit's full name, date of birth, place of birth, identity card or passport or other identification information, address and telephone, and also generalities and condition of the parties’ witnesses in the affidavit.
4. If a party is represented by an agent, the power of attorney must be annexed to the same affidavit.
5. The affidavit must be signed in the presence of a notary.
6. The notary must be authorized and appointed by the President.

The cost of an affidavit is between US$50 and US$100 dollars. By law, a notary public must "number, index and keep the original of any affidavits" they prepare or that are filed with them. The notary must provide copies of sworn affidavits that are in their "official custody" when requested, "with the exception of a will and final testament." A copy of a notarial affidavit "usually" has the same evidential value as the original.

If the person requesting an affidavit cannot provide the required content, a district judge or a notary public may refuse to release the affidavit. A notary public or judge can also "refuse to participate in a sworn statement that targets a terrorist group for fear of retaliation." In addition, an official can refuse to swear an affidavit which contains content that is "contrary to public morality or prejudicial to the state." "It is difficult" for people who are marginalized, vulnerable or from a minority community to obtain sworn statements. In addition, "[a]ccess" to notaries public, district courts and the Ministry of Justice is "limited" (Lawyer 23 Feb. 2019).

Samples of affidavits could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Lawyer in Mogadishu. 23 February 2019. Correspondence with the Research Directorate.

United States (US). N.d. Department of State, Bureau of Consular Affairs. "Somalia Reciprocity Schedule." [Accessed 14 Jan. 2022]

Additional Sources Consulted

Oral sources: Association of Somali Women Lawyers; law office in Mogadishu; lawyer based in the US with previous experience working on Somalia; Legal Action Worldwide; Mogadishu University – Mogadishu University Legal Clinic; professor of law at a university in Somaliland; public notary in Mogadishu; Puntland Legal Aid Center; Puntland State University – Puntland State University Legal Aid Clinic; Puntland Women Lawyers Association; Somali Association of South Africa; Somali Bar Association; Somali Youth Advocate and Development Organization; Somalia – National Commission for Refugees and IDPs; Somaliland Women's Law Association; UN – UN Assistance Mission in Somalia, UNDP; University of Hargeisa – University of Hargeisa Legal Aid Clinic.

Internet sites, including: African Commission on Human and Peoples' Rights; African Court on Human and Peoples' Rights; African Union – African Union Mission in Somalia, Office of the Legal Counsel; Australia – Department of Foreign Affairs and Trade; Belgium – Commissariat general aux réfugies et aux apatrides; Brookings Institution; Dayniile; The EastAfrican; ecoi.net; Finland – Finnish Immigration Service, Migration Court of Appeal; France – Office français de protection des réfugiés et apatrides; Germany – Federal Office for Migration and Refugees; Goobjoog News; Heritage Institute for Policy Studies; Hiiraan Online; Ireland – Department of Justice; Jowhar; Mareeg; Netherlands – Ministry of Foreign Affairs; Norway – Landinfo; Puntland Post; Radio Dalsan; Radio Mogadishu; Rift Valley Institute; Somalia – Embassy of the Federal Republic of Somalia in Washington, DC, Government Web Portal, Ministry of Justice; Somali Bar Association; Somali Public Agenda; Somaliland Sun; SomalilandLaw.com; SomTribune; Sweden – Lifos; UN – Office of the High Commissioner for Human Rights, Refworld, UN Assistance Mission in Somalia, UNDP, UNHCR.