By M. Trunji
Friday June 17, 2022
I am writing to draw the attention of the
representatives of the people to one of the most troublesome provisions found
in paragraph 5 of article 89 of the current provisional Constitution of 2012,
and ask them to take urgent decision to
remove this paragraph from the Constitution. This is an issue I feel very
strongly about because it had been the source of bitter and recurrent conflicts
between Presidents of the Federal Republic and Prime Ministers since 2012. In fact, we all remember the months-long feud
between President Mohamed Abdullahi and his Prime Minister Mohamed Hussen, both
trying to undermine the chances of the other to succeed. Unless this provision is
urgently revised by the Parliament, the chances of conflict between the highest
office holders in the country remain high. The recurrent conflict between Head
of government and Head of State has its genesis in paragraph 5 of article 89 of the provisional
Constitution.
Parliamentary
vs. Presidential system of government
One of the major issues
debated by drafters of modern constitutions involves the system of government
at the national level. Two primary models have emerged: those of the
presidential and the parliamentary systems. We try first, to explain, in simple
manner, the key differences between these models and secondly, to shed light on
erroneous application/interpretations of the provisions of the constitution
regarding the responsibilities and functions of the President of the
Federal Republic of Somalia.
A primary difference
between the two systems is, in the presidential system, the Head of State, is
elected directly by the people, and as such, he exercises wide range of executive
powers, whilst in the parliamentary system, the Head of State is elected by the
Parliament; he has no executive power. The executive power is vested in the
government.
The framers of the Somali
Provisional Constitution of 2012, labored through innumerable years to create a
document that would more adequately suit the needs of the fledgling Federal
Somali State. They were mindful of the
negative legacy of the accumulation of powers in the hands of one person which
had characterized the authoritarian military leadership (1969-1990). The final
text they have come up in 2012 follows closely the Constitution of 1960, in
particular with regard to the division of powers between the Parliament, the Government and the President of
the Republic. However, the balance of power that the fathers of the Somali
constitution had thought about and enshrined in the Constitution appears now to
have eroded and undermined by a serious flaw reflected in the article 89 (5) of the provisional Constitution
itself.
The problem with Article 89 (5) of the
Provisional Constitution
A
telling illustration of the flaws of the current provisional constitution is
found in article 89 (5) which stipulate:
“Every presidential candidate has to declare his candidacy to the House of
Federal Parliament and shall present his election
programme to the Federal Parliament”.
The expression “election programme” raises a pertinent question.
What does it mean? Constitutionalists know very well that, in a
Parliamentary State, hopeful presidential candidates should not, and must not
be expected, for their election, to present a programme of their own to the
Parliament. The declaration the chosen President makes in just 15 minutes before the
Parliament should not be construed as a concrete government programme he is
expected to implement, instead, it should be taken as a presentation of his
candidacy as presidential hopeful. The powers the
constitution endows on the President of the Federal Republic of Somalia do not include executive functions. The
framers of the provisional Constitution were careful not to put too much power
in the hands of the Head of State. Under the current provisional Somali
Constitution, the Government, and not the President of the Republic, is
responsible for deciding how the country is run and for managing things, day to
day.
Article
97 of the Constitution states:
(1) The
Executive Power of the Federal Government shall be vested in the Council of
Ministers, in accordance with the Constitution.
(2) The Council of Ministers is the highest executive authority of the
Federal Government and consists of the Prime Minister, the deputy prime
minister (s), ministers, state ministers and deputy-ministers, supported by
the teams of non-political civil servants that work in government departments.
Article 99 of the constitution states:
(a) The government formulates the
overall government policy and implements it
(b) Approves and implements
administrative regulations, in accordance with the law
(c) Prepares draft laws, and table them
before the House of the People of the Federal Parliament
(d) Prepares the annual budget and
finalise the accounts
(e) Sets the national development plan
(f) Implements laws, ensures national
security, and protects state interests
(g) Appoints and dismisses senior public
officials
(h) Proposes the appointment or
dismissal of ambassadors.
Before
it begins to govern, every Government must first obtain a vote of confidence in
Parliament, which grants or denies it by voting on a motion of confidence that
is based on the programme communicated
to the Houses of Parliament by the incoming Government. The government is accountable to the Parliament not to the President. Of
course, the President is consulted on every measure political issues the
government introduces.
The
Role of the Parliament
One
of Parliament's main roles is to examine and challenge the work of the
government through questioning ministers, debating and committee work. The Deputes perform a legislative function because, in
addition to introducing legislation on their own, they have the power to amend,
approve or reject government draft laws. According
to parliamentary system of government, the executive is responsible to the
parliament for its acts and policies, not to the President of the Republic. This function is strongly linked to the representation
function in that it is through the will of the people that the parliament
receives its authority in contemporary democratic States. The Parliament cannot examine or challenge the work or call the
President for interrogation
because he has no executive functions. The Parliament instead has the exclusive power to impeach the
President through a prescribed procedure. (Vide Article 92)
The
Role of the President of the Republic
In the
language of Somali constitutionalists, the President of the Republic is someone
chosen by the Parliament to be:
(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 the
founding principles of the Constitution.
One
of the founding principles of the Constitution is the separation of the powers
Despite the clear division of powers and
responsibilities among the cardinal constitutional organs of the State, in
recent years, we observe how Presidents of the Federal Republic overstep their
constitutionally defined powers and interfere significantly in the sphere of
competencies the constitution reserves exclusively for the government. National
media often reports news suggesting the President of the Federal Republic
engaged in negotiations with foreign counterparts over dossiers pertaining to foreign
and military policy matters, dossiers that should, as a rule, be handled by the
Prime Minister and his Ministers. The
fathers of the Somali Republic had hoped that the President of the Republic
would stand above intense political conflicts. Like chief of state in other
parliamentary systems, the President of the Republic of Somalia is expected to
function as an impartial arbiter among conflicting interests.
Form of Presidential Official Acts
All presidential acts are issued in the form of
decrees; they bear the denomination of Presidential Decree followed by the
date, the year and the serial number of the decree. The form of the
Presidential acts is therefore always the same whatever their
contents. All acts issued by the President in the form of presidential
decree shall be signed by the Prime Minister and the Minister responsible for
the matter to which the presidential decree relates. In fact, a presidential
decree is valid only if it is countersigned by the Prime Minster and the
competent Minister.
The power to appoint the senior government
officials, at federal level, is vested in the government, as the constitutional
organ holding the executive power (article 97 of the Constitution) However,
this choice has to be transposed into an act of the President of the Republic. The
President follows the government indications and signs the decree unless he has
to raise objections concerning the legality of the government decision. In a parliamentary system of government,
the President of the Republic cannot take proprio
motu (of his volition) administrative decisions without a formal request
from the Council of Ministers.
The expression “appoint”, appearing 5 times in
article 90 of the provisional Constitution has led to the wrong understanding
that the President has the authority to appoint senior government officials at
federal level without first receiving proposals from the Government. This is a
misleading notion which has already created confusion in the mind of those not
well familiar with the letter and spirit of the Constitution.
M. Trunji
E-mail: [email protected]