Which of these two systems is now is in force in somalia?
Mohamed I. Trunji
Saturday, February 22, 2020
First, let me state from the start that the comments reflected in this paper should not be construed as a criticism targeting particular political organization or individuals currently holding decision-making positions in Somalia. The comments are solely legal opinion a researcher of constitutional law ought to raise, absolutely devoid of political connotations.
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 set out in 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, 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 (8) of the provisional Constitution itself.
The problem with Article 89 (8) of the Provisional Constitution
A telling illustration of the flaws of the current provisional constitution is found in article 89 (8) 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 wordings reflected in paragraph 8 as referred above, are unfortunate. They have created confusion in the mind of the legislators and the public, at large, with the lamentable consequence that this may eventually lead (as it indeed did in the recent past) to the wrong conclusion that the President of the Republic of Somalia wields executive powers.
Jurists 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 powers the constitution endows on the President of the Federal Republic of Somalia are clear; they 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. By contrast, in a presidential system of government, the prospective candidates for presidency are expected, for their election, to present their political programme to the people of the country at large. The president, in a presidential system of government, is an individual elected by the citizens to be head of government and state. This is the system in place in countries like Egypt, France, Kenya and Uganda.
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. The Prime Minister and the Council of Ministers, not the President of the Republic, are responsible to the Federal Parliament for the acts of the government, even though they are signed and promulgated by the President.
Form of Presidential Acts
The power to appoint the senior government officials is vested in the government, as the constitutional organ holding the executive power (article 97 Federal Constitution). However, this choice has to be transposed into an act of the President of the Republic.
The President must follow the government indications and promulgate the decree unless he has to raise objections concerning the legality of the government decision.
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 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.
To promulgate is to officially put a law into effect. The word promulgate comes from the Latin word promulgatus, meaning ‘make publicly known.’ After the promulgation, the decree is inserted in the Official Gazette (Bollettino Ufficiale).
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.
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. Of course, The President is not a Public Notary notarizing or authenticating the acts of the government. He is consulted in every measure political issues the government introduces. But he has no the initiative of those measures.
The Constitution in limbo
Despite the clear division of powers and responsibilities among the cardinal constitutional organs of the State, in recent years, particularly since the current provisional constitution was adopted in 2012, the public has become accustomed to successive Presidents of the Federal Republic, unduly competing with the Government and discharging duties and responsibilities the constitution reserves exclusively for the government. National media often reports news indicating the President of the Federal Republic engaged in negotiations with foreign counterparts over dossiers pertaining to foreign policy issues and domestic affairs, dossiers that should, as a rule, be handled by the Prime Minister and his Ministers.
Furthermore, one is surprised to note the Presidents regularly attending the annual sessions of the General Assembly of the United Nations in New York instead of the Prime Minister under whose direction the foreign policy falls. In all other parties of the globe, where a parliamentary form of government is in place, and we cite, as way of examples, the Federal Republic of Germany, the Republic of Italy, the State of Israel and the Federal Republic of Ethiopia, the Head of the State does not go the New York to represent his country. In the countries referred above, is the Prime Minister who leads the official delegation to the General Assembly of the United Nation. This was the case during the parliamentary regime 1960-1969; the last Prime Minister to attend the session of the UN General Assembly was the late Mohamed Ibrahim Egal in September 1969, in his capacity as Prime Minister. None of the two former Presidents of the Republic, Aden Abdulla (July 1960-June 1967) and Abdirashid Ali (July 1967-October 1969) went to New York to represent the country at the annual sessions of the General Assembly of the United Nations. There are numerous fringe bilateral meetings held during the world annual gathering the leaders of the participating countries use to discuss maters of common interest.
One wonders whether this anomalous practice will continue in the future or it will get reddressed in compliance with the Constitution.
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