By M. Trunji
Thursday May 11, 2023
In the last three years of the Trusteeship period much time and effort was devoted to the preparation of the Constitution for the future of the independent Somali State. For this purpose a Technical Committee of experts was appointed in September 1957 (Administrator’s decree No 140 of September 6, 1957) The Technical Committee prepared a preliminary draft Constitution of 141articles, accompanied by 316-page commentary. (P. Contini, “The Somali Republic: An Experiment in Legal Integration 1969”, p, 3) A revised and shorter draft Constitution of 64 articles was prepared, with the assistance of an expert in Constitutional law, by the Minister for the Constitution Both drafts were examined in detail by a drafting Political Committee of fifty Somali members. The Committee approved a new draft Constitution of 100 articles and submitted it to the Constituent Assembly, comprising the ninety Deputies of the Legislative Assembly and twenty additional Somali members.
The qualifications required for the election of the President of the Republic
The draft Constitution prepared by the government dictated three main eligibility requirements candidate running in presidential elections had to meet.
The first required the candidate to be descendent from a Somali family for at least two generations; the second required the candidate to be a Muslim; the third was a minimum age of 35 years. While the first and the second requirements raised minor issues, easy to solve, the third, relating to the age, became a hotly contested one entailing fascinating debate in the Constituent Assembly during the discussions on the draft Constitution in 1959.
Based on official records of the Constituent Assembly the author was able to consult, this article sheds light on how the issue of the age requirement divided the members of the Assembly before eventually leading to a consensus.
The debate on the qualifications for eligibility of the President of the Republic started on June 9, 1959, when the Minister for the Constitution presented a draft text to the Political Committee for examination before it moved to the plenary of the Constituent Assembly, expanded with the addition of non-elected members.
The first paragraph of article 35 of the text presented by the Minister, dealing with the qualifications for eligibility, provided: “Every citizen, son of an original citizen, who has the right to vote and has completed 35 years of age, is eligible for President of the Republic”.
The debate in the drafting Political Committee
The views expressed during the debate in the Political Committee over the eligibility requirements were varied; not everybody agreed with the wording of the article as presented by the government. Some members of the Political Committee (Mohamed Sobrie and Sheikh Abdulgani), held that mention should be made in the Constitution that the President of the Republic must be a Muslim, given that the Somali population was, with rare exceptions, Muslim (Comitato.Politico, verbale 30, 26 Aprile, 1959, pagg 3, 9, quoted in Mario D’Antonio, “La Costituzione Somala, Precedenti Storici e Documenti Costituzionali” 1962, pp, 92-93) For others, it was necessary to indicate in the Constitution that the President of the Republic descends from a Somali family of at least two generations, (Comitato Politico, ibid, pag. 5)
As for the minimum age of the president, some legislators supported the ministerial proposal to set it at 35 years arguing that in the country there were a lot of educated and mature young persons (Mohamed Hagi Sobrie). Conversely, Sheikh Ibrahim Omar and many others proposed the age of 40 as the minimum age. (ibid, pag. 5)
With a broad intervention, the Minister for the Constitution manifested his opposition to the proposals referred to above, in particular by demonstrating that in a 100% Muslim country, like Somalia, it was not necessary to expressly establish in the Constitution the religious affiliation of the President. He further explained that the proposal on the religion contrasted, from a legal point of view, with a principle already agreed and approved under art. 3 of the Constitution (Equality of the Citizens), The article in question established that,” all citizens, without distinction of race, national origin, birth, language, religion, sex, economic and social status, or opinion, shall have equal rights and duties before the law”. As regards the reference to the "original" citizenship raised by some MPs, the Minister opposed it too, arguing that the notion of the “original” citizenship had already been suppressed by the new law on citizenship (Law February 12, 1960, n. 9)
However, the drafting Political Committee rejected the Government project on the eligibility requirements accepting instead the amendments proposed during the debate. As a result, Article 35 (1) was reformulated to read: “Every Muslim citizen, son of a father who was born for two generations, who has the right to vote and who has reached the age of 40, is eligible for President of the Republic”.
The decisive intervention of Abdirashid Ali Sharmarke in the Constituent Assembly In the Constituent Assembly, the age requirement was called into question; there was a diverse range of opinion on the issue. Some held that it was appropriate to set the limit at 30 years, basically on the basis of a recommendation from the British Protectorate of Somaliland side. (Assemblea Constituent, verbale 29, 9 June, 1959, pagina. 10); others supported the idea of setting the age at 40 years to favour the rise of the young generation to the highest office of the State. (Ali Gaal Afrah, (Assemblea Constituente, ibid, pagina. 21) There were also others, inspired by religious motivations, proposed to bring the age to 40-50 years (Abdirashid Ali Sharmarke, Haji Moussa Samantar, Dahir Nour Egal (ibid, pagg. 11-13, 17-18, 18, 19). In this regard, Abdirashid Ali Sharmarke, after summarizing the extent of the powers of the Head of State, and the importance of his position as representative of the whole country in its unity, said that it was necessary to establish for this body requirements different from those of other constitutional bodies, particularly with respect to age. “All the scholars of the Muslim religion”, he stressed, “agree in affirming that anyone who is not 40 years old is not mature and indeed this age is called “l’eta’ del giudizio”, the age of judgment", adding that, in his opinion, however, 40 years were "too low". “Let's convince ourselves" he asserted "that the older the Head of State is, the less selfish claims against the general interests of the nation were". (A. C. verbale. 29, June 9, 1960 page, 13)
On the same issue of the requirements of the President of the Republic, Sheikh Ali Giumale raised a new problem, proposing the addition of a paragraph to exclude from office anyone who has contracted or contracts marriage with a woman non original citizen , because “the President of the Republic can be influenced by family ties" (Assemblea Costituente, Ibid, p, 15)
In the same session, the Constituent Assembly decided to rise the age to 45 years, and approved Sheikh Ali Giumale's proposal. At the end of the debate on the “requisiti per l’eliggibilita’ or, qualifications for eligibility, the text of the article in question had been rewritten in the following manner:
1. “Any Muslim citizen whose father and mother are both original citizens, and who has the right to vote and is not less than forty-fife years of age, shall be eligible to President of the Republic.
2. The President of the Republic shall not have been married to, or marry during his term of office, any woman who is not an original citizen”.
M. Trunji
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