Ref: ALF27072016
Date: July 27, 2016
Chair, The coalition of political parties
Mogadishu, Somalia
Re: Nomination of 2016 Electoral Commission, its independence and constitutionality
Dear Chair,
Thank you for your letter addressed to our law firm, in which you requested a legal opinion on the nomination process of 2016 electoral commission, its independence and constitutionality.
Please see below your questions, our answers and legal views derived from the provisional federal constitution.
QUESTIONS AND ANSWERS:
Q1) the President of FGS nominated 2016 Electoral Commission and sighted two articles from Transitional Federal Constitution that he believes gave him the authority to nominate the commission. Does these articles – article 90 (l) and article 87 (c) give the President this authority he claims?
A1) Although it is possible to make argument on the contrary, we’re of the view that the constitutional articles sighted by the President didn’t give him the authority to nominate this commission. According to article 11G (3) it’s the responsibility of the Federal Parliament to establish the National Independent Electoral Commission. The President and this government has no role or responsibility to nominate the independent electoral commission.
Q2) We see that some members of the 2016 Electoral Commission are former Ministers, Advisors and staff selected from the offices of the President, Speaker of the Parliament and the Prime Minister, also we know that the chair of this commission used to be and as of matter of fact still is the legal advisor of the President. Therefore can we ask the courts to dismantle this commission or at least expel the chair and other members for conflict of interest arguments? We don’t see that this commission comprehends its federal mandate, and we believe that they cannot be impartial or neutral. .
A2) To nominate Former Ministers who served under current President, and advisors or staff of offices of the President, Speaker of the Parliament and the Prime Minister negates the purpose of independence, impartiality and neutrality, and such individuals cannot be considered as independent or neutral individuals. At minimum the chair and those members who did work for these high offices for the past 3 years should excuse themselves and allow credible individuals to join and lead this commission. If that doesn’t happen, we recommend taking the case to the Supreme Court since the country doesn’t have constitutional courts and to challenge the government by arguing not only conflict of interest but also independence, neutrality and impartiality assumed for all federal commissions.
Constitutionality of 2016 Federal Electoral Commission
Q3) We the coalition of political parties believe that the government didn’t follow the required proper procedure to nominate the 2016 Electoral Commission, therefore we question the constitutionality of this commission and whether it’s decision are binding.
A3) It’s clear that proper procedures has not been followed, and the fear here is that this unlawful commission could jeopardize the establishment of the new federal institutions and perhaps create legal havoc that courts will not be able to resolve for years to come. Therefore it’s advisable that political parties should be included in the leadership forum discussions so that they could voice their concerns before it’s too late.
Discussions based on facts on this case:
- On June 17, 2016, the president nominated the first 2016 electoral commission with 9 members of sitting ministers in his administration and the people cried fault, without hesitation Ministers were replaced with advisors such as Omar Dhagey. When nominating the 2016 electoral commission, the President sighted two constitutional articles that he believed gave him the authority to nominate such commission. First, let’s review the content of these articles.
- Article 87 (1) The President of Federal Republic of Somalia is:
(a) The head of the state of the Federal Republic of Somalia
(b) The symbol of the national unity
(c) The guardian and promoter of founding principles of the constitution.
This article discusses the role of presidency and the interpretation for both (a) and (b) is
Clear, part (c) which clearly indicates that the president is the guardian of the
Constitution shouldn’t be used or interpreted as the powers of the President, when clearly
Article 111G(3) provides that same authority to the Federal Parliament.
- Article 90 (l) The powers and responsibilities of the President of FGS: Appoint Ambassadors and high commissions on the recommendation of the Council of Ministers. Again this article sighted here gives the President authority to nominate government officials such as Ambassadors and High Commissions –High Commissions should be interpreted as offices similar to Embassies. Commonwealth countries use high commissions offices instead of embassy, for example there is the Canadian High Commission in India. Similarly, high commission could be used as an organization of representative of different countries who work together for a particular purpose, a good example of such organization is the United Nations High Commission for Refugees. Clearly, the authority to appoint High Commission that represents the interest of Somalia in a foreign country doesn’t constitute appointing Electoral Commission.
- Article 111G (3) The Federal Parliament shall establish the National Independent Electoral Commission and the relevant legislation required to support it as a matter of priority. – This article of Provisional Constitution of Somalia clearly grants the authority to establish the Electoral Commission.
- Article 110 of Provisional Constitution discusses the General principles of Independent Commission as follows 110 (1), (3):
110 (1) An independent commission is a body that is independent of government or political control, and able to make use of expertise relevant to the particular areas of its work.
110 (3) An Independent Commission must not be subject to the direction or control of any person or institution
- When discussing independence, neutrality and impartiality, it’s important to revert back article 110 of the Provisional Constitution and clearly this article defines independent commission as a body that is free from government control, an entity that couldn’t be dominated by any person regardless whether that person is President, Prime Minister or any other government official or institution. It could be interpreted that the President clearly had something else in-mind when he nominated 9 Ministers serving in his government the first 2016 Electoral Commission and then replaced them with staff and advisors from the offices of the President, Prime Minister and Speaker of the house and allowed Omar Dhagey, his legal advisor to lead and chair the 2016 Electoral Commission
- Now the constitutionality of the 2016 Electoral Commission – clearly, this commission was nominated by the President of FGS without proper authority and by misinterpreting or perhaps misunderstanding the meaning of Article 87(c) and 90 (l) and disregarding article 111G(3), therefore the 2016 Electoral Commission chaired by the Legal Advisor of the President Mr. Omar Dhagey is unconstitutional.
Conclusion:
In our view, clearly there is misinterpretation of the Provisional Constitution and gross violation and disregard of article 110G(3) which constitutes the authority to establish independent electoral commission solely to the Federal Parliament and not to the President. Therefore in our view yes, the President misused articles 87 (c) and 90 (l) of the Provisional Constitution, chose staff and advisors of the offices of the President, Prime Minister and the Speaker of the Parliament which negates the impartiality, neutrality and independency assume in all federal commissions and finally, yes the 2016 Electoral Commission is unconstitutional.
Soomaali
S1) Madaxweynaha JFS asagoo cuskanaya labo qodobo oo Dastuuri ah ayuu magacaabay Gudigga Doorashooyinka 2016. Hadaba qodobadaas ma yihiin kuwo siinaya Madaxweynaha Awooda uu ku magacaabay Gudiga Doorashooyinka 2016.Qodobalad uu cuskaday Madaxweynaha waa qodobka 90aad farqadiisa l iyo qodobka 87 farqadiica (c)
J1) In kasta oo siyaaba badan looga doodi karo go’aankan, hadana anagga waxaan aamin sanahay in qodobada uu cuskaday Madaxweynaha aysan siinayn awood uu ku magacaabo Gudigga Doorashada 2016. Waxayna aheyd in loo maro qaababka magacaabida Guddiyada heerka Federaalka sida ku cad Dastuurka.
S2) Waxaan araganaa in Xubnaha Gudigga Doorashada 2016 ay ku jiraan Wasiir hore, lataliyayaal iyo shaqaale laga soo xulay xafiisyada Madaxweynaha, Gudoomiyaha Baarlamaanka iyo xafiiska Ra’iisul Wasaaraha. Waxaan kaloo la soconaa in Gudoomiyaha Gudigan uu ahaa welina yahay lataliyaha Sharciga ee Madaxweynaha. Hadaba, Anagoo og in Gudiggan looga baahan yahay hufnaan, daah-furnaan iyo dhex-dhexaadnimo, ma ku dacweyn-karnaa xukuumada in laga saaro gudigan Gudoomiyaha iyo xubnaha kale ee aan dhex-dhexaadka noqon karin?
J2) Magacaabida Wasiir hore oo la soo shaqeeyey Madaxweynaha xilka haya, lataliyaal iyo shaqaale xafiisyada Madaxweynaha, Gudoomiyaha Baarlamaanka iyo Ra’iisul Wasaaraha waxay ka hor imaanaysaa madaxbanaanida Guddiga, lamana dhihi karo dadkaas waa dad dhex-dhexaad ah. Ugu yaraan waxaan soo jeedinaynaa in Gudoomiyaha iyo lataliyayaasha la soo shaqeeyey xafiisyadaas 3dii sano ee ugu danbeysay inay iska casilaan xilkooda una ogolaadaan inay guddiga ku soo biiraan hogaamiyaana. Hadii ay taa dhici waydo, waxaan soo jeedinaynaa in dacwada la horgeeyo Maxkamada Sare maadaama wadanku uusan weli laheyn Maxkamad Dastuuri ah. Laguna dacweeyo Dowladda in gudigan uusan aheyn mid fali kara cadaalad, lehna madaxbanaani.
S3) Hadaan nahay Isbaheysiga Xisbiyada, waxaan aaminsan-nahay in Dowladdu aysan raacin shuruuduhii lagu soo xuli lahaa Guddi Doorasho, sidaa darteed waxaan su’aaleynaa in Gudiggan yahay Guddi Dastuuri ah iyo in-kale iyo weliba in Go’aanadda Guddigan yihiin kuwo lagama maarmaan ah in la fuliyo. Waxaan kaloo cadeynaynaa in aanan kalsooni buuxda ku qabin Gudigaas inay maamulaan Doorasha, waxaan kaloo cadeynaynaa inaynan dhex-dhexaad ka noqon karin Doorashada, Aysan si hufan oo daahfuran u gudan karin howlaha loo xilsaaray ee Doorashooyinka 2016.