By M. Trunji
Wednesday March 16, 2022
The purpose of this article is to
describe the roles of the three main Organs of the State: the Parliament, the Presidency
of the Republic and the Government within a formal constitutional context, and to
highlight the development of those Organs stemming from close to a decade of
experience. The Judiciary Organ is outside of the scope of this assessment. Emphases
will be placed on the extensively changed role of the presidency of the
Republic which resulted from the work (not always in line with the
Constitution) of the two men who have served in the position since 2012.
The reader is warned that this writing is
not meant to blame the two Presidents, or put into question their good faith and
moral integrity: it should instead be construed as mere legal point of view
open for debate.
Since 1991 Somalia has been without functional central
government, making it one of the longest-running examples of complete state
collapse in post-colonial history. The adoption in August 2012 of a Provisional
Constitution, approved by special, 825-member
National Constituent Assembly, marking
the official end of transition and the establishment of the new Federal
Government, had been widely celebrated as the end of Somalia’s protracted
political transition.
Weak and
infective Parliament
In September 2012, 135 traditional
elders, representing all Somali clans selected 275 individuals to sit in the
new federal parliament, the first non-transitional legislature. The second
parliamentary selection process, still based on indirect vote system, took
place in 2016. With some exceptions, a considerable number of relatively young
people, holding university degrees, became members of Parliament. By the same
token, relatively young individuals were chosen as Head of Governments, Cabinet
Ministers, and Heads of State. The public believed that the country was finally in good
hands, after years of turmoil and anarchy. However, it is disconcerting
to witness that the last two past Legislatures have done little to address
duties that needed to be tackled timely, and the successes claimed are very
modest compared to the unfinished work. There are, for instance, a number of articles in the
provisional Constitution which needed to be addressed and amended, and many
other laws to be enacted during the Federal Parliament’s two terms. (2012-2021)
But these remained on the drawing board, and neither the Federal government nor
the Parliament has shown any real sense of urgency in meeting any of these
crucial constitutional obligations. The main unfinished tasks include: the
development of a federal system, the constitutional review; the establishment
of the Constitutional Court and the various “Guddiyada Madaxa Bannaan”
(Independent Commissions) listed in Chapter 10 of the Constitution.
The failure to
accomplish these tasks on schedule has slowed down the stabilization process of
the country after long period of chaos. Ample time and opportunities have been
squandered on trivial political issues and power struggle between the Prime
Ministers and the Head of the States, on one side, and between the Speakers of
Parliament and the Government, on the other. At times, the personality clash between
the holders of the top offices of the State, turned dangerously sour threatening to derail the transitional process
altogether and plunge Somalia back into civil war.
During
the life
of the past two Legislatures, (2012-2021) all the 5 Head of governments appointed
at different times became involved in a bitter personal confrontation with the
Head of States, which always resulted in the ousting of the Prime Minister and
his government. For three times,
the Parliament had been used as a tool to cause the fall of a sitting
government simply because of personality clash between the Prime Minister and
the President of the Republic. In some cases members of the Cabinet have, oddly
enough, voted in favour of the no-confidence motion against the government they
were members. It is widely held that, in all these cases, “Villa
Somalia” was behind the plot to unseat the Government. In all the three cases, the Parliament has deliberately
humiliated the unseated Prime Ministers by denying them the right to appear
before the Parliament to make statement.
Under our Constitution, it is the
Parliament, and not the President of the Republic, who is expected to control
the activities of the Government, and introduce a vote of no-confidence if there
are valid reasons to do so. The confidence in the government is of vital importance and
essential for a government that relies on the Parliament, without which the
government would not be able to perform its constitutional duties and its
national and international commitments.
Today, Somalia finds itself, for over one
year, in an unenviable situation of no Parliament in place, no functioning
government, and a President whose term has long elapsed. I cannot think of a
country, in modern time, which had ever experienced such a sad state of affairs
as the case is now in Somalia. In recent months, the rivalry between the President of the Republic and
his Prime Minister was ultimately
so paralyzing that a power vacuum was created in an election year when the
country is in dare need of an effective leadership. The current standoff
between the President and his Prime Minister (now a year old) seems no close to
being resolved. The lack of clarity about where
the authority resides only further eroded confidence in government. All of
these developments cast a pall over an electoral process which should, in
theory, bind Somalia’s leadership to the desires of its citizens. For those of
my generation, the words “Parliament”, “Government” and “President of the Republic”
still conjure up the pretty image of the institutions of the 1960s when the
Constitution, the laws and the administrative system of the country were
adhered to and functioning.
The
Constitution must be applied and correctly interpreted
The root cause of the recurrent stand-off
between the Head of the State and the Head of the Government stems from the
lack of clear understanding of the roles and functions the Constitution assigns
to the different State Organs. The Constitution lays down in a clear manner the
principle of division of powers between the three main Organs of the State: the
Parliament, the Government and the President of the Federal Republic. The distribution of power in this way is intended to
prevent any one branch or person from being supreme and to introduce ‘checks
and balances’ through which one branch may limit another. However, it is unfortunate
to witness that the ruling class fail to recognize this important principles reflected
in the Constitution.
The problem started
when the Head of the State, elected in 2012, had acted ultra vires (beyond his legal power) by carrying out functions the
Constitution vested in the Executive. From then on, until the end of his tenure
in 2016, he acted as if he were an executive President. Apparently, he received
no expert advice on the fundamental principle of separation of powers in a
parliamentary system of government. Of course, he is not to be blamed; we
should make allowance for him, given the fact that many of our current
political elite seem not very much conversant with the complicated norms of the
Constitution and their interpretation. The only system of government many of our
current politicians are familiar with appear to be the system left by the military rule (1969-1991), where
the Head of the regime enjoyed full executive power. No one tried to check and
learn how the system of parliamentary government worked during the civilian
administration (1960-1969).
In fact, within days after his inauguration, the new president
articulated an action plan he dubbed the “Six Pillars” to be implemented in the
next four years (Matt Bryden, 2013). The provisional
constitution assigns the Somali President no role in making government policy:
that is the prerogative of the Council of Ministers, headed by the Prime
Minister, which the constitution describes as “the highest executive authority
of the Federal Government” (Article 97 (2) of the provisional Constitution). The action plan
is only that presented by the government to the Parliament for which it seeks
vote of confidence. There cannot be an action plan from the President as a Head
of State.
The Parliament, who counted among its components a fairly
good number of elements with university degrees in law, instead of making their
voices heard to prevent and stop the President in breach of the Constitution, became
silent. This blatant disregard to the constitution and the parliamentary system
of government, paved the way for the President to deal directly with domestic as
well as international matters, bypassing, thus, not only the Prime Minister and
the Council Minister, but also the Parliament.
The current President of the Federal Republic, elected in
2016, followed suit and continued to act as a President with executive power.
Like the previous Parliament before it, the Parliament (2016-2020) too, made no
effort to remedy the anomaly.
Unless the fundamental principle of separation of powers is respected
and adhered to, the rift between the holders of the highest Offices of the State
will be around the corner with its adverse impact on the fragile stability the
country had painstakingly achieved in recent years.
M. Trunji
E-mail: [email protected]