12/1/2022
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The Somali Constitution stuck in limbo

By M. Trunji
Sunday - January 23, 2022

The Somali Republic was born following the proclamation of the independence of the country in July, 1960. With the constitution of 1960, approved by popular referendum in 1961, the country had adopted a parliamentary system of government as opposed to Presidential system of government.

Few would disagree that the drafters of the provisional constitution, conditioned by the vivid memory of the twenty years of military dictatorship, established an executive Organ, separate from the President of the Republic. In fact, Article 97 provides that “The executive power of the Federal Republic shall be vested in the Council of Ministers”; identical wording are found in article 77 of the 1960 Constitution. The executive power refers to a suite of powers, such as the powers to execute the law, appoint officers, communicate with foreign governments, and formulate foreign policy and the like.

CHAPTER 7 of the current provisional Constitution, in force since 2012, dealing, among other matters, with the powers and roles of the President of the Republic and the Prime Minister, is chiefly modeled on Titles II and III of the 1960 Constitution.

The figure and the Powers of the President of the Republic

The powers and responsibilities of the presidency are laid out in Somali’s Constitution and consist of a mixture of ceremonial and practical aspects.

Article 87 (b) of the provisional Constitution defines the President of the Federals Republic as “the symbol of the national unity”` On account of the supreme position he holds, the President is expected to be pi-partisan and represent the unity of Somalia. He is also responsible for ensuring that the Constitution is upheld. In the course of his tenure, he is expected not to belong or support any political party, maintain strict neutrality vis-à-vis rival political parties, and to be seen as such. In Somalia, it is an offense impugning the honour or the prestige of the President of the Republic punishable from six months to three years in jail. (Article 220 of Somali Penal Code).. This includes personal offences made regarding his exercise of powers or otherwise. It is however regrettable that nowadays the Head of States are object of fierce attacks through the media and in public gatherings. But, it is equally regrettable, that the officeholders are not known as immaculately-mannered people to earn them the respect of those in Somalia and beyond.

Special powers and responsibilities are vested in the president of the republic. The 17 paragraphs (a-q) of Article 90 of the Constitution spell out the role of the President of the Republic in our parliamentary system. However, some of these acts are duties that must be performed by the president, whereas others have no validity unless countersigned by the government. The duties he performs, without the government involvement, consist in the following: (a) the appointment of the Prime Minister, (b) opening the House of the People of the Federal Parliament, (c) holding an annual session with the House of the People of the Federal Parliament, an (d) Addressing the House of the People of the Federal Parliament at any other time. With regard, instead, to the rest of his powers, he is conditioned by the recommendation of the Council of Ministers or the Higher Judicial Council. (Consiglio Superiore Giudiziario). For instance, the President cannot decide,, by his own motion, (proprio motu) to appoint or dismiss Commanders of Forces at federal level without first receiving recommendations from the Council of Ministers (Art. 90 (c) of the Constitution). Similarly, he cannot grant pardon or appoint the President of the Constitutional Court without prior recommendation of the Higher Judicial Council. Obviously, the President is consulted and kept abreast of all measure decisions the Government intends to take.

Despite the clear language of the Constitution, recent occupants of “Villa Somalia” acted as if they were presidential Head of State with executive powers, taking decisions that could easily be invalidated by a Constitutional Court. There is a public perception that the Constitution attributes executive powers to the President of the Republic, a clear political culture inherited from the two decades of autocratic leadership the country went through under the military regime. The key areas where they had been ultra virus (beyond there legal authority) include both the appointment and dismissal of civil and military officials at federal level, and the formulation of the country’s foreign policy, areas falling under the jurisdiction of the Government. The President’s main foreign affairs responsibilities consists of meeting the representatives of foreign governments and hosting official functions, representing Somalia of state visit abroad, officially ratifying international treats approved by the Parliament. He is not empowered to formulate foreign policy or enter into international treats or understanding with foreign countries.

The political elite, that had been running the country over the recent years, is composed, by-an-large, by elements of the same age group, i.e., people born or grown up during the military regime (1969-1990). A handful of them may have possibly been involved in politics or served in senior administrative capacities before taking the helm of the State. Given their limited, or lack of familiarity with the history, the interpretation and application of the norms of the Constitution, it is of little wonder to witness the recurrent stand-off between the Prime Minister and the President of the Republic. In contrast, the post-independence politicians who emerged to run the country in early 1960s were individuals with solid and direct administrative and political experiences gained as leaders of political parties, or members of Legislative Assemblies before independence. They were well conversant with the parliamentary system the country had adopted and the manner it worked. They have often been chosen because of their achievements and experience. Frankly, in the history of Somalia, there have been only two Presidents, worthy of the name, regularly elected since the first, Aden Abdulla, was elected in 1960, and the second, Abdirashid Ali, in 1967. An era of parliamentary government came to an end in 1969 when the military took over the power imposing the country a long military administration which lasted over 20 years.

Some reflections on the title of “Commander in Chief of the Armed Forces” attributed to the Head of the State

The Constitution of Somalia, article 90 (b), states that the President of the Republic “Serves as Commander in Chief of the Armed Forces” These cryptic words have recently given rise to some controversies in our constitutional law. It should be noted that Paragraph (b) of Article 90 of the current provisional Constitution of 2012 is a replica of paragraph 75 (f) of the Constitution of 1960)

In recent times, uncontrolled voices have been circulating, through the media, spreading the wrong opinion that the Commander in Chief Clause confers to the President expansive powers and effective command and control over the Armed Forces. This view is not only misleading, but it runs counter to the spirit of the constitution itself as well as the intention of the drafters of the 1960 Constitution, the ‘mother’ of all laws. The promoters of this view seem to fail making a distinction between legal and political considerations. The truth, instead, is that the functions relating to the command of the Armed Forces given to the Head of the State are purely symbolic functions. Consequently, since the president has no direct executive power, the Government has the actual control of the armed forces, while the president retains a supervision role consisting in chairing, for instance, the supreme defence Council, in case of war or other national calamities. It goes without saying, that the day to day operational and technical command of the Armed Forces pertains to the Chief of Staff of the Army and the Minister of Defence, not to the Head of the State.

The Executive power

Article 97 of the Constitution states that “The executive power of the Federal Government shall be vested in the Council of Ministers, in accordance with the Constitution”. The Council of Ministers consists of the Prime Minister and the Ministers supported by the team of non-political civil servants that work in government departments.

The head of government (who is usually called the prime minister) is responsible for directing the administration and setting executive policy. (Art.99 (a) of the Constitution) He appoints and dismisses ministers, (Art. 100 (b). The designation of Cabinet Ministers and their dismissal are affected by Presidential Decree, duly signed by the President of the Republic. A decree appointing or dismissing Cabinet Ministers is invalid unless it is signed by the President of the Republic. The Prime Minister is in charge of the execution of laws and directs the power of the state, including the civil service, foreign policy, and the armed forces. This includes developing and introducing new legislation in order to pursue policy objectives, and steering legislation through. (Art.100 (f). The responsibility to exercise these powers is vested in the Prime Minister and his Cabinet members, considered as collegial Organ. The Prime Minister and his Cabinet Members are accountable to the Parliament, not to the President of the Federal Republic. The designated Prime Minister is expected to present detailed written programme to the Parliament on the basis of which he seeks the vote of confidence. The practice of oral presentation of the political programme of the government, as the case has been in recent years, should be discontinued in favour of detailed written text reflecting the policy the government intends to execute in the fields a vast range of activities covering education, health, economic, security, foreign policy, etc, etc..

Now, the question is how many of the candidates running for a seat in the Parliament or for the “Colle piu’alto”, the highest hill in Mogadiscio (Villa Somalia), will make a treasure of this simple lesson in constitutional law.

 M. Trunji

Email: [email protected]



 





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