Hiiraan Online

Bashir M. Sheikh-Ali, J.D., Ph.D. *
Monday June 12, 2023

Shortly after Mr. Hamza Abdi Barre was appointed the Prime Minister, I published an opinion paper on HOL [[1]] urging him to create a government that adheres to the constitutional structure in the Provisional Constitution.  There, I described the structure of the government created by Somalia’s Provisional Constitution and explained how the document creates a national government which requires federalism with separation of powers in one Chapter and a parliamentary government which does not require separation of powers in another Chapter.  The opinion paper also illustrated how reconciling the two conflicting structural features is not conceptually difficult but pointed out that it will likely be contentious. 

Last month, the National Consultation Counsel (“NCC”) proposed abolishing the parliamentary election of the President and the appointment of the Prime Minister and replacing it with a president and a vice president elected in a general one‑person-one-vote election.  This proposal (“the NCC Proposal”) reconciles the conflicting structural feature described above by effectively removing the parliamentary aspect from the Provisional Constitution.  As expected, this proposal was met with objections from politicians albeit with a narrow focus on the proposal itself without stepping back and examining the structural consequences of this proposed change within the framework of the Provisional Constitution.  As described below in more detail, if the NCC Proposal is adopted, the resulting constitution will create a traditional federal government composed of two co-sovereigns—the federal and member state governments – with a president as the head of both the state and the federal government. Adopting the presidential federal system also addresses an obstacle that unnecessarily complicated Somalia’s path to complete the Provisional Constitution.  Before I dive into that discussion, let me touch on several confusing notions. 

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First, the Provisional Constitution has been adopted in a political agreement. However, it has not been completed or ratified for a variety of reasons.  As a result, it remains in a draft stage.  Draft documents are meant to be modified until they are completed and finalized.  Completion of any document requires a mix of addition, deletion, and/or modification of certain aspects of the document.  Indeed, one of the frustrations Somalis often raise against previous administrations is that they failed to move the draft document into completion and ratification.  The NCC’s Proposal is a welcome step that moves the country in the right direction. 

Second, under Article 132 of the Provisional Constitution, “[t]he Federal Government or a Federal Members State government, a member of the Federal Parliament or a petition signed by at least 40,000 citizens may initiate the amendment process.” Emphasis added.  Thus, there is nothing procedurally improper with the federal government or a member state proposing an amendment.  The NCC includes the head of the state, the head of the federal government, and the presidents of the member states.  As such, NCC is clearly an entity that may initiate an amendment process within the meaning of article 132 of the Provisional Constitution.

Third, Article 54 provides, “[t]he allocation of powers and resources shall be negotiated and agreed upon by the Federal Government and the Federal Member States,” vesting the authority to allocate powers in the Federal Government and the Federal Member States.  Emphasis added. Whether Somalia adopts a parliamentary or a presidential federal system is the type of allocation of powers contemplated by Article 54 of the Provisional Constitution.  Further, the NCC is composed of the president (the head of the state under Article 87), the prime minister (the head of the federal government under Article 100), and member state presidents.  As such, the NCC represents both “the Federal Government and the Federal Member States” and is therefore the right entity to address any constitutional issues related to allocation of powers.    

Fourth, although Somalis from all walks appear to endorse a government with “checks and balances,” the concept seems to be often misunderstood.  Checks and balances within constitutional framework are not accomplished through raising “checks and balances” concerns in political debates but through the creation of an appropriate government structure that accomplishes the objective.  Federalism is specifically designed to provide such a structure.  In a federal system, the executive, legislative and judicial branches typically have specifically allocated powers such that if each does its job right, the whole system thrives.  The duty of each of the three branches is to support the constitutional framework of separation of powers, which is the core feature for providing checks and balances within a federal system. Thus, if Somalis want a government with checks and balances, they should seek to build a government structure with an unambiguous separation of powers.  Unfortunately, by including a parliamentary aspect to the structure of the government, the Provisional Constitution undermines this core feature of federalism.  The NCC’s Proposal corrects that grave mistake. 

Fifth, it bears remembering that federalism is not a natural system of governance where the power fans from a central authority.  Instead, federalism requires careful allocation of powers between two co-sovereigns and within each sovereign.  If not done right, Somalis will be at each other’s throat forever.  The NCC’s Proposed structural change and the debate that ensued create one of those moments that will define Somalia’s future. Rather than politicizing it, Somalis should take this debate very seriously without losing track of the objective of creating a federal system that works for all Somalis.  Objectively reviewing the structure of the government created by the Provisional Constitution, there is no doubt that inclusion of a parliamentary feature to the federal government is an obstacle for creating a federal system with separation of powers and proper checks and balances.  The NCC’s Proposal removes this obstacle.    

Finally, Article 132 of the Provisional Constitution (on “Provisions Applicable to an Amendment to the Constitution”) provides “neither House of Parliament may consider an amendment to the Founding Principles mentioned in Chapter 1 of this Constitution.”  By expressly excluding Founding Principles from the amendment process, the Provisional Constitution permits amendments to all other features in the document.  Close analysis of the Founding Principles show that Article 132 is seeking to protect federalism principles in the Provisional Constitution.  Article 3 (the “Founding Principles”) include five clauses four of which describe a federal government and none of which refers to a parliamentary government.  The fifth clause urges inclusion of women in the “three branches of the government,” which is generic to any type of government. The contrast in how federalism and parliamentary aspects of the government are treated in the Founding Principles is strong evidence that the protected Founding Principle of Chapter 1 is federalism, which the NCC’s Proposal leaves intact. The only impact of the NCC’s Proposal has on the federalism aspects of the government is the title or the position of the head of the executive branch of the federal government.  Whereas an unelected prime minister is the head of the executive branch in the current parliamentary federal government, an elected president would be the head of the government in a presidential federal system.  Having the elected president be the head of the executive branch strengthens the Founding Principles by adding an additional layer of accountability that is unavailable when the head of the executive branch is an unelected officer.  This additional accountability feature alone could well be the reason to choose the proposed presidential federalism over the current parliamentary federalism. 

Government Structure: With or Without the NCC’s Proposal

I.      Federalism Aspects of the Government

The NCC’s Proposal does not make any material change to the federalism aspect of Somalia’s government.  With or without the NCC’s Proposal, 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,[[2]] in order to ensure accountability, efficiency and responsiveness to the interests of the people.

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 are likely to follow the same pattern as the federal government.  

To be clear, the three branches of the federal government rely on each other for maintaining the federal system even though their powers are separated.  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 fulfill 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. 

In federalism, there is also a division of power between member states on the 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 leads 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 co-exist in a federal system assuming the states adopt 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 the 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”).  As further discussed below, it is the duty of Somalia’s leaders to define the delicate boundaries between and within each of the federal and the member state governments such that each of the six power centers (listed in the table above) affecting the lives of individual citizens on daily basis can exercise their specific powers without violating individual rights.

II.   Parliamentarian Aspects of the Government

Without the NCC’s Proposal, the Provisional Constitution implicitly creates a parliamentary government but doesn’t require separation of powers.  Although the Provisional Constitution explicitly 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 provides for a parliamentary process for electing a president (by the Houses of the Federal Parliament) with the power to appoint a Prime Minister. 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.    

Further, the parliamentary aspect of the government in the Provisional Constitution does not adopt a separation of the three branches (as modern parliamentary federal systems do) or no separation between the legislative and the executive branches (as traditional parliamentary systems do).  Instead, the Provisional Constitution creates a parliamentary government which does not require separation of powers. This is inconstant with “the separation of powers between the legislature, executive and an independent judiciary” required by the federalism clauses in the Provisional Constitution.  The NCC’s Proposal effectively removes the parliamentary aspect from Somalia’s Provisional Constitution, harmonizes the conflicting separation of powers clauses, and leads to a government with clear structures.   

Federalism Friction Points Need to be Addressed

An important remaining core federalism question is how to divide the powers and resources between the federal and member state governments. This power allocation falls with the authorization under Article 54, which provides “[t]he allocation of powers and resources shall be negotiated and agreed upon by the Federal Government and the Federal Member States.” Emphasis added.  There have been some movements on the resources aspect of the power sharing although they have not been completed yet.  However, there does not seem to have been much debate on other outstanding power sharing issues.  The NCC should start addressing other power sharing issues within the federalism framework as mandated by Article 54.  The Provisional Constitution reserves for the federal government matters concerning foreign affairs, national defense, citizenship and immigration, and monetary policy.  The NCC should lead the country in defining how the federal and member state government would regulate other aspects of citizens’ lives. 

Addressing the division of power between the federal and member state governments would require negotiations between Somali leaders to decide how much power the member states should retain and how much power should be given to the federal government, keeping in mind that the purpose of power sharing is not deprive the federal government of necessary powers but to create a federal government that can protect the nation, create modern business environment (both for citizens and foreign investors), and competently represent the country in world stages.  

In particular, the leaders should pay close attention to the federalism friction points that are inevitably created by the movement of citizens and goods across member state boundary lines.  Introduction of boundaries within a nation creates friction points that are unique to federalism. As the country’s safety improves, movement of people and goods will inevitably increase and having proper rules of engagement will be critical to protect the citizens from harassments by member states and to foster a national character.

To foster the national character of the country, federal systems often address federalism friction points by prohibiting member states from interfering with the personal and business activities of all nationals regardless of their state citizenship.  Federal systems also prohibit member states from engaging in a preferential treatment of their citizens over non-citizens in the movement of people or goods and from maintaining border controls to collect taxes or any other fees. Of course, contraband and security inspections should be permitted at border crossings as well as within the territory of the member state.  However, those inspections and control points should strictly be limited to address specific law enforcement objective unrelated to the movement of people and goods. Member states should also be free to tax proceeds of the transactions involving goods within its borders as long as there is no preferential treatment favoring its own citizens (or locally produced goods) over citizens of (or goods produced in) other member states.  Instead, the member states should strive for a system where all Somali citizens are free to visit, reside or do business in the member state of their choosing without any member state interfering with their activities or discriminating against them.  These federalism friction points are common in federal systems and must be addressed.

Given that the federalism power division is between the federal government and member states, member states should reject any attempt by any member state to get a preferential treatment over the other member states. Instead, all the member states should be on the same side and the federal government should be on the other side and all the negotiations should be about where to draw the (power) line that divides the two types of governments. Negotiators for the member states should remember that the federal government should be bestowed with all the powers necessary to restore a national character – otherwise, we will have a collection of neighboring and potentially warring clan fiefdoms.

In sum, the NCC has the authority to lead the country to complete the Provisional Constitution.  The NCC’s Proposal, which promotes federalism, is consistent with the government structure that Somalis have bargained for as reflected by the drafters’ protection of federalism from constitutional amendment. Therefore, the legislative branch of the government is urged to promptly bring this proposal to the floor of the parliament and start the debate of the proposed amendment to the Provisional Constitution.  Further, the NCC should start the process of addressing federalism friction points to foster the national character of the government.  Federalism will not be complete until citizens are free to cross member state boundaries seamlessly without encountering control points or tax collection stations. 

 Bashir M. Sheikh-Ali, J.D., Ph.D

* The writer is a Somali American lawyer who 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. He can be reached at [email protected].