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Issue 397
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A Constitutional Solution To The Political Crisis In Somaliland |
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1. Introduction In the early 1990s, “it was hoped that the introduction of new constitutions with a two-term limit on power would consign the ‘big man’ syndrome of African politics to history.”[1] The political culture on the continent has transformed considerably since the end of the Cold War.[2] Conversely, the attraction of power remains a strong motivating factor for many leaders. Undeniably, current years have witnessed a number of heads of state attempting to extend their tenure beyond the constitutionally permitted number of terms, or uphold power via a back-door strategy of hand-picking a docile successor and remaining in the powerful post of the chairman of the country’s dominant political party. [3] Somaliland which is unrecognized has followed this democratic trail in order to transform the African political culture.[4] After the collapse of the dictatorial regime in the former Somalia, Somaliland reconsidered its political destiny and changed the African political tradition of the ‘Big Man’ term to a limited tenure.[5] Since then, Somaliland has been referred as an example of the revival of vanished democratic regimes in Africa. It was in 2003 when the current president of Somaliland was elected as the first democratically elected president since the 1960s. Before that, it was predicted that such a move will result the understanding of the new political tradition in Africa. After the end of the constitutional term of the president, the House of Elders held a session for the extension of the president to another term. This has negatively reacted been to the opposition parties who argued that the extension was unconstitutional. However, there was no formal constitutional case opened before the Constitutional Court of Somaliland for the adjudication of the matter. As result, the supreme body which the constitution obliges to monitor and interpret any constitutional dispute has become silent. Since then, there has been a political calamity in Somaliland which still lacks a joint and collective accord. Therefore, this article will explore the legal aspect of the previous presidential extensions. Secondly, the article will assume that there may not be election which will be held on 27 September 2009. Thirdly, the article will critically scrutinize the constitutional arguments of the government and opposition leaders. And finally, the article will forecast the role of the constitution in such a crisis and will attempt to unearth a constitutional solution to this political crisis 2. The constitutionality of the extension of the presidential term Most post-cold war African constitutions do not legalize an extension of presidential term through constitutional process.[6] Unlike other countries, Somaliland inserted an article in its constitution which provides the extension of the president and the vice president for an unspecified term of office. Importantly, the constitution sets pre-requests for the extension of the term of the president. Article 83 (5) provides that, ‘if is not possible, due to the circumstances related to the security and stability, to hold the elections of the President and the vice president when their term of office ends; the House of Elders must increase the duration of their powers while taking into account the time in which it is possible to overcome these difficulties and to hold the election’. The article mandates the House to exercise their constitutional powers to extend the term of the president and the vice president of the country to another term in which they are able to organize and hold elections. In this article there is a pre-requisite that needs to be encountered before the House extends the tenure. Security and stability which can be regarded as interchangeable terms are the key requirements of possible constitutionally permitted extension. On 8 April 2008 the House of Elders held a session to debate and discuss the possibility of the extension of the president and the vice president of the Republic. Eventually the House deliberated as follows: ‘--the Guurti realizing the elections not meeting their schedule because of different reasons, the biggest one of which was the disagreement on the creation and approving of NEC, as well as Kulmiye party not naming their rightful candidate for a long time. Likewise, understanding the impossibility of holding elections without voter registration, the members of the [House] underline that the planning for the registration, budget, securing the funding, attaining of modern technical know‐how remain the main reasons the election not meeting their deadline. On the other hand the House believes the impossibility of holding elections without voter registration because of insecurity that might arise to hold elections without knowing and registering those casting their votes. Therefore, the extension of the President and the Vice‐president term was based on these reasons which are in agreement with article 83 Paragraph 5 of the Constitution of Somaliland.[7] The House further stated that: ‘The conditions relating to security in the eastern regions of Somaliland where there is insecurity. Secondly, the pressure and constant interference coming from the authority that intend to come back to the areas in Somaliland that they were pushed from and are mobilizing themselves. Thirdly, the population in the eastern regions need time for reconciliation among themselves so that an atmosphere that enable them to participate in the voter registration and local and presidential elections which they did not directly participate before be attained. It is constitutionally imperative and sacrosanct that elections take place in all the regions and districts of the Republic of Somaliland so that territorial integrity of the country is secured.[8] As the article states the only constitutional justification that the Guurti can extend their term of the president and the vice president is for security purposes. Security means that there is no possibility that the election can take with peaceful means. A similar case happened during the war between the collapsed state of Somalia and the former dictatorial regime of Ethiopia. At the time there was a slogan which could reflect the security situation of the country. Hold your guns on one hand while you are using the other for voting. These following should be met when analysing security as a constitutional justification for the extension of the term of the president and vice president § Interstate war § Intrastate war § Civil disobedience § Natural disasters Therefore, the constitutional justifications mentioned in the decision made by the House of Elders in which they used to extend the current regime are contrary to Article 83 (5) of the Constitution. 3. The feasibility of the presidential election In 2008 the NEC and the international community represented by Interpeace agreed that they should prepare the voter registration list which theoretically will make sure that fair and free elections are held. Beginning in October, 2008, Interpeace collaborated with NEC and the current regime to begin the voter registration process. Due to unforeseen discrepancies and alleged multiple votes in this system, however, the Commission has suspended the voter registration list on the grounds that it is not valid and inaccurate. The oppositional leaders contended this decision and argued that the Commission cannot unilaterally suspend the list. On the contrary, the president and the Commission argued that they have the legal authority to suspend the list in which they alleged that it is invalid and incorrect. This legal tension has changed into a political confrontation between opposition leaders on the one hand and the Commission and the president on the other hand. Previously the three political parties and the government agreed that the election date would be 27 September 2009. This date may not be logic for free and fair election. It is there forecasted that the election may not be feasible to be held the proposed date due to the political conflict between the contesters. Therefore, the paper assumes that the election may not happen on the agreed date and then as result of this, the extended term of the president and the vice president ends. Therefore, the question would be is there a constitutional solution to this problem. 4. Contested issues After the suspension of the voter registration list, the oppositional parties announced that they are not in support of the unilateral suspension. On the other hand, the government and the Commission are sticking on to their position that the list is invalid and incorrect and, as result, cannot be used as part of presidential elections. Elders and other foreign mediators mentioned that on the one hand, the opposition leaders argue the term of this government will end on 27 October one month after the date of the election and as result; there should be an interim government which organizes the election within six months should be formed. Conversely, the government argues that it can only be replaced by an elected president and vice president. In the following paragraphs the paper will examine the constitutionality of these arguments. 4.1 The possibility of an interim government: a constitutional argument presented by the oppositional leaders It is undoubted that the current government’s mandate has been extended for one year by the House of Elders with the inconformity of the constitution of the Republic. It is fact that the constitution does not provide the specifications of the extension, yet the Elders used it as means of keeping the current regime in power. This may be regarded as a major impediment to the democratization process of the country. After the unilateral decision of the Commission, the oppositions argue that there should be an interim government. Article 89 (4) provides that ‘if one of the cases mentioned in article 86 of the constitution happens at the same time to the president and vice president of the Republic; the chairman of House of Elders shall assume the power and the duty of the president of the Republic for an interim period and the election of the president and the vice president shall be held within (60) days from the day in which that case has happened’. Under this Article, an interim government can only be made when these requirements are met: · Conviction of a criminal offense which leads to loss of office. · Inability to fulfill the duties of the office because of ill health. · Death. · The President or the Vice-President may forward his written resignation from office to the Speaker of the House of Representatives and the Speaker of the House of Elders, and the two Houses may, in a joint sitting, accept it or reject it by a (simple) majority of their total membership. · If the two Houses reject the resignation referred to in Clause 4 of this Article, the President or the Vice-President shall have the right to submit again his resignation within three months of the initial resignation request, whereupon the two Houses shall be obliged to accept it.[9] It is at this time when the Constitution of Somaliland permits that presidential power should be transferred to the Chairman of House of Elders. According to the argument of the opposition leaders there is no place in the Constitution which permits that an interim government should be established. It would be unconstitutional if the oppositions persist that an interim government should be formed. 4.2 An elected president can only be replaced by an elected president: a constitutional argument made by the government Article 83(3) of the Constitution provides that, ‘the former president and vice president shall continue to exercise their powers until the new president and vice president assumes these powers within a period of one month.’ The term ‘former president and vice president’ signifies that a new president has already been elected. Furthermore, the term ‘new president and vice president’ also clarifies that a new president and vice president has been popularly elected. The article mainly highlights the transitional period of the outgoing administration and upcoming administration. Thus, this Article cannot be applied to the current situation. If the ruling party and the government argue that they can only be replaced by an elected president and vice president and base their argument under this article, they cannot substantiate their constitutional argument under this article. It is evident that there is no elected president and vice president and therefore, this article is irrelevant. 5. 5. Predicting way forward Importantly there is no explicit Article mentioned in the Constitution which can be used to diffuse these constitutional disputes between the government and the oppositional leaders. It is therefore, imperative to read the lines and find a constitutional solution to this confrontation. 5.1 The role of the constitution of Somaliland Principally the constitution as the supreme document of the land must have a position to stand in such turbulent situations. According to the articles of the constitution there is no explicit and undisputable article which formulates the way forward in such situations. Although there may be the possibility that the president may again approach the House of Elders and request another third extension of his tenure, this would not acquire a constitutional support. On the other hand, the oppositional leaders and other concerned groups may not be happy with such a move. Therefore, there is a need to resolve this problem through constitutional process. 5.1.1 Founding principles of the constitution One of the founding articles of the constitution is that decision be reached through joint consultation. This term has been mentioned in the preamble of the constitution which legally does not have a legal binding force.[10] Pre-colonial epoch the Somali people used to resolve their disputes through dialogue, consensus and consultation. Accordingly, this principle can be used to resolve the conflict between the contested parties. 5.1.2 Constitutional principles Article 9 of the constitution of Somaliland provides that, ‘the political system of the Republic of Somaliland is based on peace, consultation, democracy and multiplicity of the political parties.’ Consultation as a constitutional principle can be used to diffuse the current political disputes. 5.1.3 The role of the Constitutional Court The constitution established a judicial branch which is mandated to regulate the disputes that may arise between the state and individuals and between individuals.[11] Article 101 provides that, ‘the Supreme Court of Justice is the highest entity in the judicial scale and it is at the same time the Constitutional Court...’ It is therefore, an institution which regulates the constitutional disputes arise from the organs of the state and between the state and individuals. Article 14 of the Law of the Organization of Judiciary provides the composition of the court. In addition, its mandate has been mentioned under Article 15 of this law which explicitly provides the task and the powers of the court.[12]The court has absolute power to determine the constitutionality of certain actions and to rule it impartially. Furthermore, the court has legal power to interpret the provisions of the constitution and other parliamentary acts. With regard to this constitutional dispute the court has power to rule and determine the constitutionality of the two arguments presented by the parties. Principally it would be this court which would ultimately determine the constitutionality of those arguments. the oppositional parties cannot regrettably file their constitutional suit to this court because of its lack of independence.[13] 6. Conclusion The paper has explored to find a constitutional solution to the current political crisis in Somaliland. As mentioned in the paper, there is no explicit article in the constitution which can be used to diffuse the current political tensions. The constitution is silent with regard to what will happen if the election does not take place and the constitutional tenure of the government ends. The paper deeply researched and unearthed that the only constitutional solution to this crisis would be the founding principles which are mentioned in the preamble of the constitution and Article (9) which provides the constitutional principles. These two articles provide consultation as part and parcel of the laws of the country. It further states that decisions which are reached through consultation are binding and legally enforceable. Therefore, the only remaining constitutional mechanism that can be used to resolve this political crisis is through consultation, dialogue and consensus. Mohamed Farah Hersi is an attorney and human rights researcher. He holds an LL.B (Bachelor of Laws) from the University of Hargeysa in Somalia, an LL.M (Master of Laws) from the University of Pretoria in South Africa, and is currently a Ph.D. candidate [1] Opening statement taken from ‘When enough is enough’ in The Economist, 6 April 2006. [2] Scholars have noted an increasing number of non-violent successions in Africa, increasing respect for constitutional provisions, an increasing number of elections and their increasing competitiveness. Posner, D.N. and Young, D.J. (2007) ‘The Institutionalization of Political Power in Africa’ in Journal of Democracy, forthcoming, available at <http://www.polisci.ucla.edu/faculty/posner/pdfs/Posner Young.pdf>, accessed on 2 July 2007. Southall, R.; Simutanyi, M. and Daniel, J. (2006) ‘Former Presidents in African Politics’ in Southall, Roger and Melber, Henning (eds.) Legacies of Power: Leadership Change and Former Presidents in African Politics, Cape Town: HSRC Press and Uppsala: Nordic Africa Institute, pp. 1-2, available at <http://www.hsrcpress.ac.za>, accessed on 1 April 2007. [3] Presidential term limit written by Daneil Vencovsky The term ‘neo-patrimonialism’ describes informal clientpatron power networks based on mutual favours. The point about neo-patrimonialism taken from Brown, S. (2004) ‘Theorising Kenya’s protracted transition to democracy’ in Journal of Contemporary African Studies, 22:3, pp. 325-342; Sklar, R. L., Onwudiwe, E. and Kew, D. (2006) ‘Nigeria: Completing Obasanjo’s Legacy’ in Journal of Democracy, 17:3, and ‘A president frustrated’ in The Economist, 18 May 2006. [4] The Importance of Term Limits Presidential term limits, most often two terms, are a common feature of democratic constitutions adopted in Africa in the 1990s. Thirty-three of the 48 new constitutions contained such provisions, at least for some time. However, not all politicians subscribe to the importance of a two-term presidency. Across Africa, proponents of additional presidential terms have argued that a third term, when achieved via a legal constitutional amendment and an election, is a perfectly legitimate development that reflects people’s will to re-elect the incumbent. Moreover, third-term advocates have proposed a range of country-specific arguments. They often speak of the fear of instability, in particular in cases of absence of a clear successor, or of the need to complete or sustain reforms. Critics of these claims retort that presidents may be motivated by more selfish considerations, such as vanity and hunger for power, fear of prosecution for corruption or human rights abuses and the lack of opportunities for retired presidents. It has also been suggested that tenure extensions may be spurred by the anxiety of the neopatrimonial network that fears the loss of connections and privileges. The most-often cited reason for the adoption of term limits in the early 1990s was to “prevent arbitrary and violent rule often associated with lifelong presidencies from recurring”.4 In the case of Nigeria, it has been suggested that the term limits can contribute to the zonal rotation of the presidency among the country’s three main geo-ethnic-political zones, thus alleviating the danger of one of the groups feeling permanently politically marginalised.5 [5] Three countries experienced unsuccessful attempts to have their constitution changed to allow their president an additional term in office. All three countries then saw an attempt of the outgoing leaders to continue to exercise power by hand-picking a presumably obedient successor. In Zambia, both the national constitution and the constitution of its ruling party – the Movement for Multiparty Democracy (MMD) – contain a term limit on their presidents. Frederick Chiluba’s quest for a third term faced stiff opposition from parts of the MMD, including a number of senior politicians, civil society, trade unions, student unions, women’s organisations, churches and lawyers, and widespread disapproval by the public, the extent of which was demonstrated by the wearing of green ribbons and car hooting and whistling campaigns. Chiluba had the advantage of having control over some of the media and the state’s law enforcement agencies. While succeeding in changing the MMD’s constitution, Chiluba failed to garner sufficient support for an amendment of the national constitution, and confirmed that he would stand down. However, unwilling to relinquish the reins of power, he resorted to an indirect strategy: he selected Levy Mwanawasa as the MMD presidential candidate. Mwanawasa was expected to be easily controlled by Chiluba via the MMD, with Chiluba Malawi’s Bakili Muluzi also unsuccessfully campaigned for a constitutional amendment to allow him to run for a third term. A parliamentary bill to that effect was narrowly defeated. Subsequently, Muluzi attempted to put another two bills before the parliament. However, these met with a rising opposition and were withdrawn. Muluzi’s actions sparked a wide-ranging opposition from civil society, including lawyers and churches, traditional leaders, political parties and the media. Public disapproval was expressed by wearing purple ribbons and car hooting campaigns. There were attempts from the president to stifle the campaign, including an initial ban on demonstrations. Muluzi then followed Zambia’s example and nominated Bingu wa Mutharika, seen by many as a political lightweight and obedient successor, as his party’s presidential candidate and campaigned heavily on his behalf. After Mutharika’s inauguration as president, Muluzi was expected to continue to pull the strings from his post as the ruling party’s chairman. However, it did not take long for Muluzi and Mutharika to fall out, with the official reason being Mutharika’s unhappiness with Muluzi’s resistance against his anticorruption policies.13 In Nigeria, supporters of President Obasanjo attempted to push through a constitutional amendment that would allow him to serve for a third term. However, this met with a strong backlash from the media, the public, the international community, and even Obasanjo’s own party, the People’s Democratic Party (PDP). The amendment was voted down in the Nigerian Senate. According to some observers, Obasanjo resorted to a strategy that would see him maintain power by indirect means. He hand-picked Umaru Musa Yar’Adua as PDP’s presidential candidate. The International Crisis Group commented that “the choice of Yar’Adua confirmed that, though defeated in parliament, Obasanjo was not ready to relinquish power. [Yar’Adua] is widely perceived as a weak frontman for Obasanjo. Without strong bases in the PDP, [he] would have to rely on Obasanjo to determine policy and make many appointments.”14 According to the International Crisis Group, the state apparatus was used by the president in his quest to ensure Yar’Adua’s victory, both in PDP nominations and in the presidential ballot. In a highly controversial manner, a number of would-be presidential candidates were disqualified from the ballot. These included Yar’Adua’s main contender, Atiku Abubakar.15 Abubakar fought this decision in the courts and the matter was finally resolved a few days before the ballot by Nigeria’s Supreme Court, which ruled that Abubakar was permitted to stand. Yar’Adua, however, emerged victorious from the election. [6] Seven presidents, most of them long-serving leaders of their countries, secured constitutional amendments that allowed them to stand for a third term in office, and all seven won subsequent re-elections. These were presidents Blaise Compaore of Burkina Faso, Idriss Deby of Chad, Omar Bongo of Gabon, Lansana Conte of Guinea, Sam Nujoma of Namibia, Gnassingbe Eyadema of Togo and Yoweri Museveni of Uganda. Many of these leaders are veterans of African politics, and had been in power before the adoption of term-limiting constitutions in the 1990s. Their continued rule lays bare their lack of commitment to the new constitutions, as term limits were abolished as soon as they threatened to affect them. Gabon’s Omar Bongo is a case in point. He came to power in 1967, and he is the continent‘s longest-serving leader. He ruled in a one-party polity until 1991, when a new constitution introduced a multiparty system and a two-term limit. Following two terms in office under the new constitution, he secured an amendment that again abolished term limits. In a similar manner, Guinea’s Lansana Conte served as a military ruler, and then oversaw the transition to civilian rule and the introduction of a two-term provision in the early 1990s. In 2003, he won a referendum that removed term limits on the presidency. Burkina Faso’s Blaise Compaore first had the term limit scrapped, and later agreed to reinstate it. However, by a ruling of the Constitutional Court, the reinstated limit was only to apply for future elections, which made it inapplicable to his previous terms in office. Successful overstayers also include Yoweri
[7] An unofficial translation. Accessed on 30 August 2009 (www.somalilandlaw.com) [8] An unofficial translation. Accessed on 30 August 2009 (www.somalilandlaw.com)
[9] See article 86 of the constitution [10] The founding principles are; Islamic Sharia, decision reached through joint consultation, balance of state’s authority that is divided into legislative, executive, and judiciary, decentralization of the government administration, guarantee of the private ownership and respect for the free market, promotion and protection of the fundamental rights and freedoms, peaceful and co-existence with the neighbouring states and the international community. [11] See more article 97 of the constitution [12] The Constitutional has the following powers :- a) To adjudicate the constitutionality of the decision made by the executive and the legislature. b) To interpret the constitution and other parliamentary acts. c) To interpret and amend judgments issued by courts which are not in line with the constitution. 2) Judgments issued by the Court should not be based on politics. 3) The trail proceeding of the Court shall be guided by the Civil Procedure Code. 4) The Court shall produce and insert its judgment the evidence it has used. 5) Every citizen who has been violated his/her rights and freedoms can write a petition or application to the court. 6) The Court shall issue its judgments when it has investigated the matter and scrutinized evidences brought. 7) It is obligatory that the court should look after evidences in order it can use issue a well reasoned judgment. 8) The judgments of the court are final. 9) The Court has an advisory role for any constitutional disputes. NB: This is unofficial translation and , therefore, cannot be quoted
[13] The House of Representative discussed the Public Order Law in one of their sessions and agreed that they should send the matter to the Constitutional Court to look at the constitutionality of this law. This law has been alleged that it violates the fundamental rights and freedom of the citizens. But it has been using by the Regional Security Committee to detain and prohibit lawful demonstrations. It is from this background that the Constitutional Court did not consider the case. Another incident has happened during the extension of the term of the House of Elders. The president wrote an application to the Court requesting to give him an advisory opinion. These two cases prove that the court is not independent practically and constitutionally. It is from this setting that oppositional leaders did not consider it an option for resolving this problem.
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