Hargeysa, Somaliland, 14 April 2007 (SL Times) - Somaliland Times asked Ibrahim Hashi Jama, a Somaliland lawyer living in the UK, to give a brief and informal view of his understanding and thoughts regarding the current constitutional confusion surrounding the legality of registering a political organization/party in Somaliland. Ibrahim is the Chairman of the Somaliland Forum Constitution & Law Committee. He has written extensively about the Somaliland laws, and is also the editor of www.somalilandlaw.com website.

At the time, the SL Times did not have the intention to publish Ibrahim Hashi's views regarding this thorny matter, but we simply sought his opinion out of curiosity. After reading his reply, we thought that it deserved a wider readership. When informed of our intention to publish his reply, Ibrahim Hashi Jama lamented that had he known we were going to publish his response, 'he would have prepared an article deserving of the importance of this subject'. Nevertheless, he agreed that we could share it with our readership.....(Editor)

by Ibrahim Hashi Jama

10 April 2007

As you may know I have advised years ago that the constitutional three party limit does not sit squarely with democracy and there could have been other ways of limiting the number of parties through, for example, higher but lawful threshold requirements for the registration of political parties by an independent body. We also recommended in 2000 that, like all other democracies, the function of registration of political parties should be given to an independent Electoral Commission and not to the last temporary Registration Committee. You can see some of my then comments in this article I wrote in 2000 -
http://www.somalilandlaw.com/Article_Political_Parties_Law.htm

Nonetheless, we are stuck with the constitutional limit of three Parties, and it will be impossible for our Supreme Court to declare Article 9 (2) as being contrary to the rest of the Constitution, which it is, by the way. The new political association (NOT Party, by the way - Qaran) is using a different, and in my view, perfectly legal and arguable case. They are not challenging the three party limit, but what they appear to be saying is that there is nothing in the Constitution which says that the three parties must be the current ones, let alone identifiable party A, B or C. Indeed their argument that there are fundamental articles and principles in the Constitution which militate against any law which says that three parties will forever and Amen be A, B & C is correct and unassailable.

The problem is that the 2000 Political Parties/Associations Law (Law No:14/2000), as I said in my article, set up a system of a one-off registration of political associations and a one-off system for selection of the three parties. When the earlier drafts of the Law were circulated, the Registration Committee was supposed to serve for a term of 5 years, which suggested that their job would not have been confined to a one-off exercise (see the footnotes in my article). Sadly, the final version of the Law stated that the Registration Committee will be disbanded 6 months after the three parties are chosen, and that was what happened. This was highly unsatisfactory, because if one of the parties imploded or if it practically joined another one, the Law left no system for the creation and registration of a new party to fill the gap - worse it never even said when and who will pronounce the death or demise of any party. Laws should cover such possible eventualities and this Law was highly deficient in this respect.

If Qaran's argument is that by failing to provide it (and others) an existing registration mechanism for new political associations, so that they can compete for becoming one of the three parties, Law No:14/2000 is unconstitutional and should be changed so that the competition is opened up, then that is a perfectly valid legal argument. I am not sure though about their interpretation that Law No: 14/2000, as it stands now, allows them to be registered as a political association now. It does not provide for such a scenario and there is currently no registration committee; the committee has to be set up under an amendment of the Law which will have to be passed by both Houses and the President! Remember we and others recommended that the law be amended once before to open up the registration and that was how ASAD and the other late comers were registered prior to the last local government elections.  Parliament and the President can amend any law and there are cogent constitutional arguments that they should do that soon as nothing in the Constitution gives these three parties the right to be the gatekeepers in perpetuity!

The other way for Qaran and others to effect such a change is to mount a case at the Constitutional Court, but the Court has not, so far, shown any flair or deep understanding of constitutional issues.

It is a pity that this debate was not entered into a year or two ago so that the mechanics can be put in place through an amendment of the Law. Qaran, of course, will not be the only association which may want to contest the elections if the registration is re-opened, and here is where practical considerations come into the equation. Any new association will be competing with three settled and well oiled, if not necessarily buoyant political parties and even if the new associations get off the ground, we are now only seven months away from the local elections. Considering that we are still arguing about the composition of the Electoral Commission, I cannot see how a consensus can be reached about an amendment of Law No: 14/2000, although part of the problem can be solved by giving the registration responsibilities to the Electoral Commission. Secondly, in view of the fact that, in my opinion, President Rayaale is not eligible for re-election to another term of office, having already served more than one term before he was elected, the controversy engendered by the formation of new political associations could lead to an unfortunate postponement of the elections and a playing of the old "Guurti term extension" trump card next year.

In short, Qaran has a legitimate concern and an arguable legal case, but I wonder whether politically it might make more sense for this round of elections to proceed and for the law to be changed immediately afterwards so that new political associations can be formed and can then have a good run at the next local government elections in 2012. Better still, in my view, we should amend the Constitution next year after the elections, get rid of the three party limit and have a proper and tough, but lawful, political parties registration regime which ensures internal democracy within parties and an obligation that they have to garner real support from more than three or four regions, attain a minimum percentage of votes etc.

If we get rid of the constitutional limit of three parties, we would not be facing these kind of thorny issues, and we would not have to have regular unnecessary additional competitions to decide who the lucky top three parties would be. In any case, there is no reason why local democracy only should benefit from multi-party/association contests, whilst the more important national political elections which can also benefit from the wider pool of candidates should be confined to the nominations of three parties only.

Finally, it is correct, as mentioned in my article, that the model we followed in 2000 was the one used in Nigeria in the 1990s for kick-starting the political parties after the end of the military regime and the abolition of the previous parties, but Nigeria only used that system once and the current elections this year, for example, are being contested by many parties which have been registered over the years.

Source: Somaliland Times