Kanini Evans Kariuki
Wednesday, June 13, 2012
The consultative meeting of the Somali signatories of the process for ending the transition and the previous Garowe principles and Galkayo agreements are violating the Charter and the constitution of 1961 for Somalia.
The signatories of the above mentioned documents are the President of Somalia, the Prime Minister, the President of Puntland state, the President of Galmudug in complete state and the Representative for Ahlu Sunnah Wal-Jama´a (ASWJ) and the UN Special Representative for Somali(SRSG)ambassador Augustine Mahiga.
In the consultative meeting held in Addis Ababa, the signatories discussed the draft of the constitution which was subjected to a constitutional review by a technical committee after harmonizing and incorporating the written submissions of the signatories into the final draft constitution.
STATUS
If we legally consider the status of each of the six signatories according to the article 1.1 of the constitution, the sovereignty of the Somali people states that
1) All the sovereign authority belongs to the people of Somalia and may be exercised directly or indirectly through their representatives, in accordance with this Charter and the laws of the country.
2)The right to exercise to sovereignty shall not be delegated to any individual, group or class, and no person shall arrogate to him or herself, or exercise any state authority, which does not emanate from this Charter or any laws of the land not in consistent with this Charter.
These agreements are not also abiding and respecting the supremacy of law which is stipulated in article 3 of the Charter as follows:
Paragraph 2 of article 3 of this Charter states that the Transitional Federal Charter shall be the supreme law binding all authorities and persons and shall have the force of law throughout, the Somali Republic. If any law is inconsistent with this Charter, the Charter shall prevail.
In order to make the agreements and accords for Somalia to be legally respected, they should be consistent with the Charter and the national constitution of 1961.
To explain more, the illegality of the accords and agreements mentioned above article 49 of the constitution of 1961 states that the legislative power is vested in the Parliament.
SIX SIGNATORIES
The six signatories mentioned in this document are not having the legal functional binding to sign Somali's national destiny.
If we take the functional responsibility of the six signatories, the President is the custodian of the Charter and constitution and his responsibilities are clearly defined in article 44 of the Charter.
In this article, there is no legal course that entitles him to sign an agreement with officials of States, regions and districts and there is no space for the UN Representative to sign an agreement with the six signatories.
Similarly, the Prime Minister according to article 48 of the Charter, there is no equality in authority between him and Heads of State Governments, regions and districts.
In the same token,there is no legal aspect for the Ahlu Sunnah Wal-Jama´a (ASWJ) to be signatories with the head of the state of Somalia and his Prime Minister.
DETHRONED SPEAKER
Also, the participation of the dethroned speaker was illegal according to article 33 of the Charter.
The recommendations of these signatories that the President of the TFG provide, through a Presidential decree, a legal basis to steer the constitutional process towards the adoption stage and to end the transition.
Do these six signatories have the authority and legal power to designate the President to issue presidential decree orders?
If we refer to the constitution of 1960, the presidential decree can be initiated by the Council of Ministers or by the delegation of legislative power according to article 62 of the constitution, or according to article 63 of the set of laws.
As some of the International community members suggested to the President and Prime Minister, the dissolution of parliament is illegal and against article 53 of the constitution.
Paragraph 3 of article 53 of the constitution stipulates that no dissolution shall take place during the first year of office of the Parliament, or during the last year in office of the President of the Republic.
Paragraph 4 of article 53 of the constitution states that the outgoing parliament shall retain its powers in all cases until the proclamation of the electoral results for the new Parliament.
INCOMPLETE STATE OF GALMUDUG
The President of Punt land state and President of the incomplete state of Galmudug have their legal fittings in article 11 paragraph 2 of the Charter which states as follows:
(2) The Somali Republic shall comprise:
a) The Transitional Federal Government.
b) State governments, two or more federated according to their free will.
c) Regional administrations.
d) District administrations.
The six signatories violate article 11 paragraphs 6 and 7 which creates an Independent Federal Constitution Commission to be appointed according to the laws passed by parliament related to the mandate of the commission and the qualifications and terms of service of its members.
Therefore, the consultative meeting of harmonizing the final draft of the constitution is completely illegal and against the Charter and the Constitution.
LEGAL EFFECTS
Article 71 of the Charter paragraph 1 states that the Charter shall have the legal effects pending the eventual enforcement of the National Federal Constitution.
Paragraph 2 of the same article stipulates that the 1961 Somali Constitution and other national laws shall apply in respect of all matters not covered and not inconsistent with this Charter.
The legal exit for the transition could have been done by amending the current Charter leaving the final draft constitution to the incoming parliament and Government, as the situation in Somalia at present will not permit an access of most of the regions to get the input of the majority of the Somali population.
BYPASSES
I cannot understand how the UN bypasses the legitimacy and legality of the Somali parliament and defies the Charter of the United Nations which respects the sovereignty and Independence of the member states of the UN.
I hope the Somali jurists and lawyers will aptly demonstrate their legal opinion of the current issues that are taking place in the Horn of Africa nation and endangering the unity of the Somali state, the dignity, integrity, rights and fundamental freedoms and the rule of law.
Kanini Evans Kariuki is a veteran Kenyan Journalist with several years of experience behind him.