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Somalia’s Government Must Adhere to the Constitutional Structure

by Bashir M. Sheikh-Ali, J.D
Saturday July 09, 2022


Somali parliament endorsing the new prime minister (Photo: Somali Parliament)


Reduced to its simplest definition, governance is all about exercise of power.  To understand how any government functions, look no further than how its branches exercise their powers and what happens if a branch exceeds its boundaries.  Federal constitutions allocate various powers to the government branches to create a system of governance with a built-in checks and balances designed to prevent the government from overreach and abuse of its powers.  The reader would appreciate that constitutional allocation of the powers to the various branches of the federal government is for the protection of the governed, not for the benefit of the government branches, their heads, or their employees.  Therefore, adherence to the constitutional allocation of powers is not optional for the government.  Failure to allocate all powers as required by the constitution undermines the government’s legitimacy.  Because of Somali governments’ historic failures to adhere to the federal constitutional structure, the built-in checks and balances meant very little for Somalis and the government overreach and abuse of its powers became the norm. 

How are these Powers Allocated in the Provisional Constitution?

The answer to the above question is not completely straightforward. As discussed below in more detail, the Provisional Constitution creates a federal government which requires separation of powers in one Article and a parliamentary government which permits (but does not require) separation of powers in another Article.  Reconciling the two articles is not conceptually difficult but will be contentious if the affected government officials resist constraints on their powers.

Federal Government Which Requires Separation of Powers

The Provisional Constitution creates a federal government with separation of powers. Under Article 3 of the Provisional Constitution (the Founding Principles Article),  

[t]he Constitution of the Federal Republic of Somalia promotes human rights, the rule of law, general standards of international law, justice, participatory consultative and inclusive government, and the separation of powers between the legislature, executive and an independent judiciary,[[1]] in order to ensure accountability, efficiency and responsiveness to the interests of the people.

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Emphasis added.  Another Founding Principles of Article 3 calls for federalism more explicitly “Federal Republic of Somalia is founded upon the fundamental principles of power sharing in a federal system.”  Id.  These Founding Principles are typical of the constitutions of liberal democracies where the individual rights and liberties are protected through a separation of powers between the three power centers of the government: the executive, the legislative, and the judiciary branches.  While the separation of powers in Article 3 clearly applies to the federal government, member state government structures often follow the same pattern as the federal government.  In this paper, it will be assumed that the member states will adopt the separation of powers principles. 

Notwithstanding the separation of powers clause, the three branches of the federal government rely on each other for maintaining the system.  The legislative branch has the spending power and passes all the laws; the executive branch leads the government agenda and executes the laws; and the judiciary branch ensures that the adopted executive agenda and other laws are not inconsistent with the constitution. If the judiciary branch oversteps its powers to check on how the legislative and executive branches exercise their powers, it is to the interest, if not the duty, of the latter two branches to address judiciary branch’s overreach through legislation that does not take away or modify any constitutional power allocated to it. With its spending powers, the legislative branch ensures that the executive and judiciary branches are properly funded such that they can fulfil their constitutional duties. If each branch attends to its duties, the system will flourish and help establish a thriving society.  It should be clear by now that the three branches of a federal government can have somewhat contentious relationship, each making sure that the other two stay within the boundaries of the powers allocated to them.  The president could even get into the fray of the checks and balances by refusing to sign draft laws deemed to unconstitutionally reallocate powers. [[2]] 

In federalism, there is also a division of power between member states on one side and the federal government on the other side.  Thus, by adopting a federal system, the Provisional Constitution necessarily calls for dividing the governmental powers between the federal and member state governments. Reading the federalism and separation of powers clauses together lead to the conclusion that the Provisional Constitution creates a federal government with separation of powers between the federal and member states and between the executive, the legislative, and the judiciary branches of each sovereign (with the assumption that member states adopt separation of powers principles).  The table below summarizes the six government branches that can co-exist in a federal system where the state governments adopted separation of powers principles. 

Although most of the powers can be cleanly divided between the federal and the member state governments (the so-called exclusive powers), there are some areas of people’s life that both the federal and the member state governments often function simultaneously (the so-called concurrent powers).  When the member state and the federal government have concurrent powers, however, all federal systems call for a supremacy clause where the federal government’s power (as limited by its constitution) is supreme to that of the member state.  See Article 4 of the Provisional Constitution (“the constitution of the Federal Republic of Somalia is the supreme law of the country”).

Parliamentary Government Which Doesn’t Require or Prohibit Separation of Powers

Although the Provisional Constitution mentions federal and local governments on numerous occasions, it does not mention parliamentary government as a system of governance.  However, as is typical in the constitution of a parliamentary government, the Provisional Constitution instead provides a parliamentary process for electing a president (by the Houses of the Federal Parliament) with the power to appoint a Prime Minister. [[3]]  See Articles 89 and 90.  As is also typical in parliamentary governments, Article 97 of the Provisional Constitution gives the Prime Minster the power to “appoint deputy prime ministers, ministers, state ministers, and deputy ministers” and declares “The executive power of the Federal Government shall be vested in the Council of Ministers.” Reading Articles 89, 90, and 97 together leads to the unmistakable conclusion that the Provisional Constitution is attempting to create a parliamentary government even if it does not explicitly state so. 

From the standpoint of power allocation, there are two common approaches for establishing a parliamentary government.  The two approaches differ in whether the executive and the legislative branches are blended or separate.  In the traditional parliamentary system, the cabinet members are also members of the parliament [[4]] such that the two branches are essentially blended or, viewed more accurately, the legislative branch controls the executive branch.  Because the executive branch is part of, and subject to the control of, the legislative branch, the latter essentially sets its own agenda and plays a role in setting that of the former.  When this type of parliamentary government exists in a federal system, the result is a parliamentary federal government in which the legislative branch controls the executive branch such that the separation of powers is only partial (the judiciary branch is separated from the other two branches). The judiciary branch would still retain its duty in ascertaining that the public policies adopted by the executive branch and the laws passed by the parliament are not inconsistent with some supreme authority (such as a federal constitution). 

More recent parliamentary federal systems (such as that adopted by Belgium) seek to establish true separation of powers between the three branches of the federal government.  In those systems, members of the parliament can be appointed to the cabinet; however, they must resign from the parliament before assuming their cabinet role.  Thus, while the three branches of the government would still rely on each other for maintaining a functioning system, they also remain independent of each other. 

Somalia’s Provisional Constitution does not adopt either of the two approaches—complete separation of the three branches (as in modern parliamentary federal systems) or no separation between the legislative and the executive branches (as in traditional parliamentary systems).  It does not require that the legislative branch controls the executive branch (because membership of the parliament is not required to become a member of the Council of Ministers); and it does not separate the powers of the legislative and executive branches as required explicitly by Article 3 of the Provisional Constitution. Instead, members of the parliament are eligible to be appointed members of the Council of Ministers.  The members of the parliament are also permitted to retain their parliament seat after their appointment to Council of Ministers is confirmed. [[5]] Therefore, the Provisional Constitution creates a parliamentary government which permits, but does not require, separation of powers.

Parliamentary Federal Government with Separation of Powers

On the one hand, Article 3 of the Provisional Constitution creates a federal government that requires separation of powers between the executive, the legislative, and the judiciary branches of the federal government.  On the other hand, the same document creates a parliamentary government without requiring, but permitting, separation of powers of the three branches of the central government. Therefore, the resulting government, which may be called a parliamentary federal government, can satisfy the requisite constitutional structures only if it has both federal and parliamentary characters and requires separation of powers between the three branches of the federal government [[6]]. 

An important principle of separation of powers under federalism is that no person should be employed by more than one sovereign or by more than one branch of the government within a sovereign.  If Somalia’s parliamentary federal government is to adhere to the promised separation of powers under Article 3 of the Provisional Constitution, it would have to institute federalism (i.e., co-existing federal and member state governments) and separate membership of the executive branch from that of the legislative branch of the government, at least within the national government. No member of the legislative branch of the federal government should carry any executive or judiciary duty.  Similarly, no judge or law enforcement officer should be a member of the legislative branch. In such system, the three branches of the government rely on each other for maintaining a functioning system; however, their powers are separated.   Failure to adhere to strict separation of powers principles violates the constitution and creates chaos because members with dual allegiances often become agents of destruction. Therefore, parliament members should be required to resign from the parliament once they are confirmed as members of the Council of Ministers.  

One justification for allowing parliamentary members to retain their seats while serving as a cabinet member (in violation of the Provisional Constitution) appears to be human resource limitation. Instead of deliberately violating the federal constitution and undermining the entire system, a better approach to address any human resource limitation is to reduce the number of cabinet positions to a more manageable number.  There are some cabinet positions that serve no purpose in a democratic society.  For example, what purpose does a Minister of Information serve other than propagate government propaganda? Information and public discourse should be left to the marketplace.  There are several cabinet positions that can be placed under the interior ministry, including all positions that relate to resources (e.g., fishery, petroleum, ports, power/water, etc.).  It may be more efficient to fold Ministry of planning with the Ministry of public works. Livestock and agriculture do not need two ministries.  A properly staffed and empowered office in the Justice Ministry can more effectively handle human rights issues. A commission can deal with the constitution and religion issues.  Air transport and telecommunication need small independent agencies.  These delineations are just examples and need not be followed exactly; however, it would make sense to revisit the number of cabinet positions in the government and organize them based on the public need. Somalia needs an efficient government that provides service to the public—not a bloated government that exists for the sake of employment of cabinet members while providing little to no public service.    

If desired, courts are prime area for consolidation of resources because judges are often trained to assume multiple roles.  For instance, it is not uncommon for federal and state courts in a federal system to have overlapping jurisdictions in the same dispute such that they can both adjudicate it. When a federal judge is adjudicating the state issue of the dispute, he/she will use the state law; similarly, when a member state judge is adjudicating the federal issue of the dispute, she/he will use the federal law.  Thus, a single court can be empowered to adjudicate both state and federal issues without sacrificing any of the core principles of separations of powers.  If the judge wrongly applies the laws of one sovereign, appeal to the appropriate court of that sovereign is always available.  That is why courts are prime area of consolidation if it is desired because of resource limitations. 

If separation of powers is deemed undesirable, it should be removed from the Provisional Constitution by adopting the traditional parliamentary structure while retaining the federal character of the government.  Until the constitution is amended, however, allowing parliamentary members to hold cabinet positions violates Article 3 of the Provisional Constitution.  

Currently, the legal grounds on which the existing legislative and judiciary branches stand can charitably be described only as shaky.  Somalis have considerable unease in how the members of the two houses of the parliament have been selected.  They may be tolerating it only because they feel the alternative could very well be worse. Further, the existence of a functioning, independent judiciary branch is highly questionable. Therefore, creating an executive branch that is not based on the Provisional Constitution will only exasperate the lawlessness that prevails in Somalia.  History will be on his side if Prime Minster Barre creates an executive branch that sets an example for the country and changes its governance trajectory.  

Bashir M. Sheikh-Ali, J.D. [[7]]

[email protected]


[1] Textually, Article 3 of the Provisional Constitution calls for the separation of powers of the three branches of the government—executive, legislative, and independent judiciary.  The term “independent” in “independent judiciary” signals to the public that the judiciary, in addition to having its separate powers, is an independent branch. Given that the judiciary branch’s main role is dispute resolution, that it is an independent branch of the government provides legitimacy that the other two branches do not necessarily need. Indeed, the legislative and the executive branches are not independent of each other even though their powers are separated—the executive branch proposes and enforces the law; the legislative branch passes the law. The judiciary branch does not get involved in the creation or the enforcement of the laws; it merely settles disputes (public or private) and interprets the law.  An independent judiciary branch is the most important branch of the government for safeguarding individual rights.

[2] It appears that a presidential signature is required for a draft law, passed by the two houses, to become a law.  Article 90 provides that it is the power of the president to “[s]ign draft laws passed by the Federal Parliament in order to bring them into law.”  If the president refuses to sign a draft law (passed by the two houses), it appears that it does not become a law.  

[3] It appears that federalism was the most important aspect of the government that is created by the Provisional Constitution.  It is possible the parliamentary aspect of the government was an aforethought meant to placate certain groups by creating a government that resembles the Somali governments of 1960s.  Indeed, the drafters failed to reconcile the two constitutional government structures that the Provisional Constitution creates: a federal government with rigid separation of powers and a parliamentary government with flexible separation of powers.

[4] UK, a constitutional monarchy, has a traditional parliamentary system where the legislative branch controls the executive branch where membership of the parliament is required to be nominated for a cabinet position. Very rarely, UK uses a procedure called “peerage” where a non-member of the parliament is selected for a cabinet position and, upon confirmation, the cabinet member is made a “peer” for the purposes of parliament membership. Peerage is a workaround of the general rule and is very rarely used.  India, which has a federal government, follows UK system of parliament, and prohibits nominating a non-parliamentary member to a cabinet position.  In contrast thereto, Belgium, which is a constitutional monarchy with a parliamentary federal government, does not restrict who can be nominated to a cabinet position; however, upon confirmation to the cabinet position, a parliamentary member would be required to resign from the parliament, maintaining strict separation of powers. Thus, while India requires that cabinet members to be in the parliament, Belgium prohibits it. Both India and Belgium have parliamentary federal governments.

[5] To be clear, Article 59 of the Provisional Constitution provides, “[m]embership of the Federal Parliament can be lost as a result of” and lists a number of events, including “[t]he member accepting to hold a government position other than a ministerial post.”  Emphasis added. The Somali version of Article 59 provides, “Xubinnimada Baarlamaanka Federaalka waxaa lagu lumin karaa . . . [h]addii ay xubintu aqbasho xil Dawladeed aan wasiir ka ahayn.”  Emphasis added. Thus, the Provisional Constitution explicitly exempts membership of the Council of Ministers from being a disqualifying event for membership of the federal parliament.  Therefore, Article 59 allows some members of the federal executive branch to be members of the federal parliament, which is inconsistent with the Founding Principle’s explicit call for separation of powers. 

[6] Ostensibly, the principles of the separation of powers apply to the executive, the legislative, and the judiciary branches, but not to the president.  However, that does not mean that the president’s powers overlap with those of any of the three branches.  Instead, the president’s powers are enumerated in Article 90 of the Provisional Constitution. Under Article 90, the president is the commander in chief of the armed forces with the power to declare a state of emergency and war.  Power to appoint various high-level officers of the government (including the Prime Minister, Commanders of the Forces, Chairmen of the Constitutional Court and the High Court, ambassadors, and other senior federal government officers) is bestowed on the President.  The President has the power to dissolve the executive government (unless it receives a vote of confidence from the House of the people), receive foreign diplomats, dissolve House of the People when its term expires, and sign international treaties and laws passed by the two houses.  The President opens House of the People, addresses them at any time and holds an annual session with them. 

[7] The writer is a Somali American lawyer and practices law in the United States. The opinion in this paper is his own opinion and should not be attributed to any of his partners, associates, or colleagues.



 





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