11/27/2022
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Assessing the Somali State Institutions 10 years after the end of the transition

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]



 





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