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.
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.