Every country has its own legal jurisprudence where people would glance back to find rulings or precedents for present situations or legal challenges. Accordingly, Somalia has a rich legal jurisprudence that deserves acknowledgment. It is a system through which contemporary legal disputes could be compared and solved.
Abdiweli Sheikh Ahmed (right) and Hassan Sheikh Mohamud in Mogadishu on December 12, 2013 (AFP)
by Asha-Kin Farah Duale
Thursday, December 25, 2014
The recent political standoff between President and his Prime Minister is not a novelty in the Somali political arena as, since 2000, ten PMs were either booted out by foreign pressure or via the loss of confidence of the Parliament.
In this article I would like to take you back to 1960 and weigh the understanding of the recent rift in which each contending party claimed to have found its legal basis in the Provisional Constitution of Somalia (2012).
Both 1960 and 2012 Constitutions enshrined the Parliamentary system as the adopted system of governance. The necessity of such choice of governance or whether even an informed choice existed at the time of drafting both constitutions is not part of my article as it is a subject requiring further research and analysis.
During the civilian period, and since 2009, the successive Presidents were being elected by the Somali Parliament; therefore, each President has enjoyed a legal platform in exercising their constitutional executive power.
Art. 75 of 1960 Constitution illustrates the power of the President as ‘a ceremonial’ figure (to certain extent) who represents the unity and sovereignty of the State.
His powers are as follows:
a) The President of the Republic shall exercise the functions conferred upon him by the Constitution and by law, in the legislative, executive and judicial fields. In addition, he shall:
b) authorize the presentation to the National Assembly of draft legislation originating with the Government;
c) address messages to the National Assembly;
d) grant pardon and commute sentences;
e) accredit and receive diplomatic agents;
f) ratify international treaties, after previous authorization from the National Assembly, where required;
g) be the commander-in-chief of the Armed Forces;
h) declare a state of war after authorization from the National Assembly in accordance with Article 68;
i) Confers State honours.
Article 77 defines that the executive power is vested in the Government composed of the Prime Minister and the Ministers. Art 78 (3) clearly outlines the President’s power to appoint and dismiss the Prime Minister while Art 78 (4) enshrines the President’s power of appointing Ministers and dismissing on the proposal of the Prime Minister.
The President of the Republic was not obliged to designate as Prime Minister the candidate proposed to him by the ruling party. In fact, President Aden Abdulla, in two different occasions (in 1960 and 1964) did not choose as Prime Minister the candidate proposed by the party. He had, instead, designated his own candidates. In 1960, the SYL Central Committee proposed Abdullahi Issa but the President opted for Abdirashid Ali Shermarke. Again in 1964, he preferred Abdirazak Haji Hussein as Prime Minister against the recommendation of the ruling party which endorsed Abdirashid. However, in both cases the President couldn’t have selected his PM outside the majority ruling party- the SYL.
Having said that, the power to sack PMs was also vested within the Parliament; as such, Somalia never had a PM dismissed by the President although article 78 (3) of the 1960 c
Constitution provided such executive power to the President of the Republic.
Due to the clear division of powers, the collaboration between the first President and his PMs have been smooth during their tenure, and any disaccords have never magnified to the extent of needing ‘foreign’ assistance to calibrate against any power collision. This is due to the position of legality of both figures and the demarcation of boundaries of their constitutional executive powers.
If we look at Article 90 of the current Provisional Constitution 2012, it enshrines powers and responsibilities of the President of the Federal Republic of Somalia as to:
(a) Declare a state of emergency and war in accordance with the law;
(b) Serve as Commander in Chief of the Armed Forces;
(c) Appoint and dismiss the Commanders of the Forces at the Federal Government Level on the recommendation by the Council of Ministers;
(d) Appoint the Prime Minister, and to dissolve the Federal Government if it does not get the required vote of confidence from the House of the People of the Federal Parliament by a simple majority (50% +1);
(e)Dismiss ministers, state ministers and deputy ministers on the recommendation of the Prime Minister;
(f) Sign draft laws passed by the Federal Parliament in order to bring them into law;
(g) Open the House of the People of the Federal Parliament;
(h) Hold an annual session with the House of the People of the Federal Parliament;
(i) Address the House of the People of the Federal Parliament at any other time;
(j) Appoint the chairman of the Constitutional Court, the High Court, and other judges at the Federal Government Level in accordance with the recommendation of the Judicial Service Commission;
(k) Appoint senior Federal Government officials and the heads of the
Federal Government Institutions on the recommendation of the Council of Ministers;
(l) Appoint ambassadors and high commissions on the recommendation of the Council of Ministers;
(m) Receive foreign diplomats and consuls;
(n) Confer State Honours on the recommendation of the Council of Ministers;
(o) Dissolve the House of the People of the Federal Parliament when its term expires, thereby prompting new elections;
(p) Pardon offenders and commute sentences on the recommendation of the Judicial Service Commission; and
(q) Sign international treaties proposed by the Council of Ministers and approved by the House of the People of the Federal Parliament
Despite the long list of powers the Constitution conferred to the President, he has no power to dismiss the chosen PM as per the 1960 Constitution. Moreover, some would argue that the current President should not have interfered in the PM’s power of forming or reshuffling his Cabinet at will in accordance with Art 100 (b) as he may have only the power of being consulted and to provide advice. The Constitution is even silent on whether the President’s advices and consultation should be binding on the PM’s decisions.
Said that, there is a huge difference between the previous PMs’ selection and the method of candidature of the PMs in 1960 as I briefly described above. The previous PM, and all the other 10 that Somalia has had since 2000, have been selected on 4.5/ 5.0 power sharing formula and through tribal negotiations.
The previous PM, as all the 10 PMs who were either sacked or booted out, cannot be compared with the late PMs Abdirashid Ali Sharmarke or Abdirazak Haji Hussein or Mohamed Ibrahim Egal who were all representing the ruling party of the time. In fact they all never enjoyed a legal platform as they were not representing a majority ruling party.
They were neither obliged to implement any party’s political programme nor of a clan’s one, although the basis of their nomination was of clan affiliation. In fact, the political programme that the previous PM has presented to the Parliament to gain the vote of confidence was in strict collaboration with the President, and both have agreed upon it at the time of negotiating his appointment.
Although the Provisional Constitution 2012 gives less executive power, the President, by default, has in this specific time and space, more power than the PM because of being elected by the Parliament. That is to say, as long as the PM’s nomination is through tribal negotiations and not through a democratic party system, the President will always have the upper hand and recurrent collision/s between a misguided PM and of a misunderstanding President are to be expected.
The present Provisional Constitution is ambiguous and it is not clearly defining the roles and powers of the President and PM. Most of its provisions are not applicable in the current context of rebuilding institutions, systems and mechanisms that would enable Somalia to uphold law and order.
By 2016 (when the party system will become a reality in the Somali politics), it is unavoidable to review the President’s executive powers by granting the power of dismissing the PM now standing that the PM is still retaining the confidence of the Parliament. This is in line with Art 78 (3) of 1960 Constitution and it is a pre-emptive option against future conflicts.
Dismissals should be limited in number to avoid capricious exercise of power. This would enable the PM to acknowledge that beside the Parliament also the President is holding the stick and in the case of his dismissal the majority party will replace him or her.
Another drastic alternative option is to review the current Parliamentary system of governance into Presidential one. However, the danger is that the inevitable accumulation of executive power in one man’s hand coupled with the lack of proper and functioning safeguarding institutions and measures for its check and balance will create autocracy. Somalia has already been there.
On a positive note, democracy is in its infancy in Somalia; however, the ability of solving the recent paralyzing political stalemate in house was a great accomplishment that needs to be applauded. This reinforces the hope that the legislatively insecure time of seeking outside validation for any governmental action or inaction is no more.
Asha-Kin Farah Duale
Human Rights Lawyer