by M. Trunji
Tuesday Sep 11 2018
By resolution 289
(IV) of 21 November 1949 of the General Assembly of the United Nations it was
provided that Somalia should become independent sovereign State after a
ten-year trusteeship under Italian administration. The Trusteeship Agreement
provided no clear indications as to whether the Administering Authority was
expected to prepare a constitutional charter for the Trust Territory before
independence, or whether this was an issue to be tackled by the Somali
government after independence.
However, the
Administration started drafting a Constitution, aiming to have it ready before
the independence date. For this purpose, two committees were appointed: a
Political Committee and a Technical Committee. Chairing the Political Committee
was the President of the Legislative Assembly (Aden Abdulla Osman), with other
members including the Prime Minister, the Cabinet ministers, the Undersecretaries,
the two Vice-presidents of the Legislative Assembly, the leaders of the
parliamentary groups, the two Secretaries of the Parliament.
The Technical
Committee was chaired by Professor Giuseppe Aurelio Costanzo, Dean of the
Somali Institute of Law, Economics and Social Science. An expert designated by
the United Nations Advisory Council, Paolo Contini, Senior Legal Advisor in the
office of Legal Affairs of the United Nations Secretariat, was a member of the
Technical Committee. In response to the inquiry made by the Secretariat, the
governments of Egypt and Lebanon each proposed a candidate. The Advisory
Council selected the one first proposed, Dr. A.F. Sayer Dayer, from the
University of Ein Shams, Cairo, and the Technical Committee co-opted him as a
member.
In its first
meeting, the Technical Committee began considering the inclusion in the
Committee of Somali nationals, despite their inadequate expertise in constitutional
matters, on the grounds that no foreigner would genuinely represent the
interest of Somalis; therefore, it was felt imperative to include Somali
members in the work of the Committee. After informal approval by the Chairman
of the Political Committee, Hon. Aden Abdulla, seven Somalis were co-opted.
Between October
1957 and May 1959 the Technical Committee prepared a preliminary draft
constitution of 141 articles, accompanied by a 316-page commentary. The framers
of the Constitution did not start with a blank sheet, but built on existing
constitutions. The Committee examined a variety of recent and old models
worldwide. In reality, however, the Committee depended heavily on the Italian
constitutional model, considered the most suitable model in the Somali context
on the grounds that it was the Constitution of the administering power which
had established the legal system of the institutions existing in the Trust
Territory.
At its first meeting
on 11 October 1957, the technical committee decided to set up six
sub-committees. each dealing with specific chapters of the Constitution:
General principles and rights and duties of men and citizens, Legislative
functions, Executive functions, Decentralization, Judicial functions,
Constitutional guarantees. Each Sub-committee prepared draft articles on the
chapter assigned to it and submitted it together with an explanatory report to
the technical committee for discussion and approval.
The work of the Technical
Committee was carried out in three separate phases: in the first phase, 38
plenary meetings were held, as well as fifty-eight sub-committee meetings,
ending in March 1958; the second phase, in which only 24 plenary meetings were
held, was dedicated to revision of the proposals already submitted. The entire
final text of the Constitution was approved on 1 November 1958 and submitted
one month later to the President of the National Assembly on December 2, 1958. With
the completion of the draft text of the Constitution by the Technical
Committee, the Legislative Assembly has been transformed into a Constituent
Assembly for the purpose of framing the Constitution of the future State of
Somalia. (Law n. 6 of January 8, 1960)
The Legislative
Assembly, transformed into a Constituent Assembly, was to carry on its dual
functions of approving the Constitution as a constituent body, and acting as
Legislative Assembly to deal with routine work
In view of the
fact that the Somali Legislative Assembly was almost entirely composed of Lega dei
Giovani Somali MPs, the UN Trusteeship Council recommended in 1959 that the
composition of the Political Committee and Constituent Assembly be broadened to
include representatives of all existing political parties and other important
social and cultural organizations of the Territory, and to provide for the
popular confirmation of the Constitution. The issue had generated heated debate
in the Legislative Assembly between opponents and supporters of the proposal.
The government was highly suspicious of the proposal which it saw as a clear
sign of the Trusteeship Council’s long held reservations on the fairness of the
1959 general elections. Pressured by different parties, the government eventually
accepted the UN recommendation to include two members of each existing
political parties in the Constituent Assembly. The Political Committee in
charge of drafting the Constitution introduced few amendments to the text
prepared by the Technical Committee. However, these amendments, very few as
they may appear, included one important principle which left its mark on the
essence and legal foundation of the Constitution. This was the adoption of the
doctrine of Islam as the main source of the laws of the State, giving the new
Constitution a clear Islamic character. All efforts were made by the
Constituent Assembly to strike a balance between the need to preserve the
Islamic doctrine as the main source of the laws of the State and the need to
frame a modern and democratic Constitution. The importance of Islam in Somali
society is reflected in several clauses of the Constitution. To start with, the
very first article of the Constitution establishes that: “Islam shall be the
religion of the State” Article 6 reads: “The Somali Republic shall encourage
solidarity among the people of the world, and in particular among Africans and
Islamic people.” Article 29 reads: “Every person shall have the right to
freedom of conscience and freely to profess his own religion and to worship
subject to any limitations which may be prescribed by law for the purpose of
safeguarding morals, public health or order. However, it shall not be
permissible to spread or propagandize any religion other than the true faith of
Islam.
The form of
government (federalist or unitary) the new nation would adopt was the subject
of prolonged debate in the Constituent Assembly. The Hisbiya Dighil Mirifle
party (HDM) advocated a federal government. It advocated a federal parliament
composed of representatives of the regions in numbers proportional to those of
the population of each region, with competence over all matters relating to
federal government affairs, including election of the Head of State and the
Central Federal Government itself. It also supported the idea of regional
governments formed by the representatives elected by each region in numbers
proportional to the numerical force of the electors.
By contrast, the
Lega dei Giovani Somali party advocated a unitary form of government. The
federal system was seen as a dangerous principle that clan and regional groups
could resort to, with potentially destructive effects on the unity of the
country. However, the principle of regional autonomy was present in the 1960
constitution where article 86 established that “Whenever possible, administrative functions shall be decentralized and
performed by the local organs of the State and by public Bodies”. The 1960
Constitution also adopted the unicameral parliament instead of the bicameral
system which exists in many countries. The rationale behind this choice rests
on consideration of its advantages in terms of the time and expense involved in
maintaining and operating the parliamentary structure.
The Somali
Constitution of 1960 was different from the Constitutions in force in other
newly decolonized African countries, and was seen as a model of parliamentary
government unique in Africa. All other African countries had adopted the
presidential system, where the head of State has sweeping executive powers
making them to rule their respective countries with iron fist. By contrast, in
Somalia the executive power is vested in the government headed by the prime minister.
On May 23, 1960,
the constituent Assembly began its debate on the draft constitution and, after
42 sessions lasting 31 working days, approved it on June 21, 1960, a little
more than two weeks before the independence date of 1st July1960.
M. Trunji
E-mail:
[email protected]