6/25/2022
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Open letter to the Somali Lawmakers

By M. Trunji
Friday June 17, 2022

 

I am writing to draw the attention of the representatives of the people to one of the most troublesome provisions found in paragraph 5 of article 89 of the current provisional Constitution of 2012, and ask them to take urgent decision to remove this paragraph from the Constitution. This is an issue I feel very strongly about because it had been the source of bitter and recurrent conflicts between Presidents of the Federal Republic and Prime Ministers since 2012.  In fact, we all remember the months-long feud between President Mohamed Abdullahi and his Prime Minister Mohamed Hussen, both trying to undermine the chances of the other to succeed. Unless this provision is urgently revised by the Parliament, the chances of conflict between the highest office holders in the country remain high. The recurrent conflict between Head of government and Head of State has its genesis in paragraph 5 of article 89 of the provisional Constitution.

Parliamentary vs. Presidential system of government

One of the major issues debated by drafters of modern constitutions involves the system of government at the national level. Two primary models have emerged: those of the presidential and the parliamentary systems. We try first, to explain, in simple manner, the key differences between these models and secondly, to shed light on erroneous application/interpretations of the provisions of the constitution regarding the responsibilities and functions of the President of the Federal Republic of Somalia. 

A primary difference between the two systems is, in the presidential system, the Head of State, is elected directly by the people, and as such, he exercises wide range of executive powers, whilst in the parliamentary system, the Head of State is elected by the Parliament; he has no executive power. The executive power is vested in the government.

The framers of the Somali Provisional Constitution of 2012, labored through innumerable years to create a document that would more adequately suit the needs of the fledgling Federal Somali State. They were mindful of the negative legacy of the accumulation of powers in the hands of one person which had characterized the authoritarian military leadership (1969-1990). The final text they have come up in 2012 follows closely the Constitution of 1960, in particular with regard to the division of powers between the Parliament, the Government and the President of the Republic. However, the balance of power that the fathers of the Somali constitution had thought about and enshrined in the Constitution appears now to have eroded and undermined by a serious flaw reflected in the article 89 (5) of the provisional Constitution itself.

 The problem with Article 89 (5) of the Provisional Constitutionfreestar

A telling illustration of the flaws of the current provisional constitution is found in article 89 (5) which stipulate: “Every presidential candidate has to declare his candidacy to the House of Federal Parliament and shall present his election programme to the Federal Parliament”.

The expression “election programme” raises a pertinent question. What does it mean? Constitutionalists know very well that, in a Parliamentary State, hopeful presidential candidates should not, and must not be expected, for their election, to present a programme of their own to the Parliament. The declaration the chosen President makes in just 15 minutes before the Parliament should not be construed as a concrete government programme he is expected to implement, instead, it should be taken as a presentation of his candidacy as presidential hopeful. The powers the constitution endows on the President of the Federal Republic of Somalia do not include executive functions. The framers of the provisional Constitution were careful not to put too much power in the hands of the Head of State. Under the current provisional Somali Constitution, the Government, and not the President of the Republic, is responsible for deciding how the country is run and for managing things, day to day.

Article 97 of the Constitution states:

(1)  The Executive Power of the Federal Government shall be vested in the Council of Ministers, in accordance with the Constitution.

(2) The Council of Ministers is the highest executive authority of the Federal Government and consists of the Prime Minister, the deputy prime minister (s), ministers, state ministers and deputy-ministers, supported by the teams of non-political civil servants that work in government departments.

Article 99 of the constitution states:

(a) The government formulates the overall government policy and implements it

(b) Approves and implements administrative regulations, in accordance with the law

(c) Prepares draft laws, and table them before the House of the People of the Federal Parliament

(d) Prepares the annual budget and finalise the accounts

(e) Sets the national development plan

(f) Implements laws, ensures national security, and protects state interests

(g) Appoints and dismisses senior public officials

(h) Proposes the appointment or dismissal of ambassadors.

Before it begins to govern, every Government must first obtain a vote of confidence in Parliament, which grants or denies it by voting on a motion of confidence that is based on the programme communicated to the Houses of Parliament by the incoming Government. The government is accountable to the Parliament not to the President. Of course, the President is consulted on every measure political issues the government introduces.

The Role of the Parliament

One of Parliament's main roles is to examine and challenge the work of the government through questioning ministers, debating and committee work. The Deputes perform a legislative function because, in addition to introducing legislation on their own, they have the power to amend, approve or reject government draft laws. According to parliamentary system of government, the executive is responsible to the parliament for its acts and policies, not to the President of the Republic. This function is strongly linked to the representation function in that it is through the will of the people that the parliament receives its authority in contemporary democratic States. The Parliament cannot examine or challenge the work or call the President for interrogation because he has no executive functions. The Parliament instead has the exclusive power to impeach the President through a prescribed procedure. (Vide Article 92)

The Role of the President of the Republic

In the language of Somali constitutionalists, the President of the Republic is someone chosen by the Parliament to be:

(a) The Head of the State of the Federal Republic of Somalia

(b) The symbol of the national unity

(c) The guardian and promoter of the founding principles of the Constitution.

One of the founding principles of the Constitution is the separation of the powers

Despite the clear division of powers and responsibilities among the cardinal constitutional organs of the State, in recent years, we observe how Presidents of the Federal Republic overstep their constitutionally defined powers and interfere significantly in the sphere of competencies the constitution reserves exclusively for the government. National media often reports news suggesting the President of the Federal Republic engaged in negotiations with foreign counterparts over dossiers pertaining to foreign and military policy matters, dossiers that should, as a rule, be handled by the Prime Minister and his Ministers. The fathers of the Somali Republic had hoped that the President of the Republic would stand above intense political conflicts. Like chief of state in other parliamentary systems, the President of the Republic of Somalia is expected to function as an impartial arbiter among conflicting interests.

Form of Presidential Official Acts

All presidential acts are issued in the form of decrees; they bear the denomination of Presidential Decree followed by the date, the year and the serial number of the decree. The form of the Presidential acts is therefore always the same whatever their contents. All acts issued by the President in the form of presidential decree shall be signed by the Prime Minister and the Minister responsible for the matter to which the presidential decree relates. In fact, a presidential decree is valid only if it is countersigned by the Prime Minster and the competent Minister.

The power to appoint the senior government officials, at federal level, is vested in the government, as the constitutional organ holding the executive power (article 97 of the Constitution) However, this choice has to be transposed into an act of the President of the Republic. The President follows the government indications and signs the decree unless he has to raise objections concerning the legality of the government decision. In a parliamentary system of government, the President of the Republic cannot take proprio motu (of his volition) administrative decisions without a formal request from the Council of Ministers.

The expression “appoint”, appearing 5 times in article 90 of the provisional Constitution has led to the wrong understanding that the President has the authority to appoint senior government officials at federal level without first receiving proposals from the Government. This is a misleading notion which has already created confusion in the mind of those not well familiar with the letter and spirit of the Constitution.

M. Trunji
E-mail: [email protected]



 





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