The President of Somalia Does not have Immunity or Privilege Under the 2012 Constitution or any other law enforce

Introduction

It is a fundamental principle that all persons are equal before the law. All citizens, regardless of sex, religion, social or economic status, political opinion, clan, disability, occupation, birth or language shall have equal rights and duties before the law in accordance with article 11 of the Somali Constitution.

However, immunity or jurisdictional privileges can be a license provided to public officials to shield them from responsibility and accountability regarding civil or criminal activities, together with a reduced risk of legal consequences. Immunities from jurisdiction confer an exemption from penalties, payments or legal requirements, granted by authorities or statutes upon a specified group of people. Where immunity is used improperly, it has a negative effect on the administration of justice.

Define Immunity

The Word ‘Immunity’ connotes protection from prosecution, legal immunity protects certain office holder from prosecution while they are in Office. The immunity clause in the constitution of the Federal Republic of Somalia in 2012, protects some political office holders from civil and criminal proceedings. Simply put, no court process should be served on them and no court in Somalia should have any jurisdiction to entertain matters involving them.

The backbone of the immunity clause is based on the principle of functional necessity. It is pertinent to State at this point that the same principle of functional necessity applies in international law to diplomatic immunity. The international agreements on diplomatic immunity can be found in the Vienna Convention on Diplomatic Relations 1961 of which Somalia is state parties since 1968.

Somalia’s Constitution: Privilege and Immunity

1. Legislative immunity

Certain institutions are entitled to immunity and privileges under the Somalia’s constitution. Legislative immunity, for example, is intended to allow lawmakers to work independently and unimpeded by the threat of intervention from the other branches of government in the discharge of their legislative duties. However, Somalia’s constitution grants limited privileges and immunity to both houses of the federal parliament. While the more important of these privileges, namely,Freedom from arrest in non-criminal actions. These clauses can be understood in connection to Articles 70 and 78 of the Constitution, which deal with immunity from the National Assembly and Upper House, respectively.

1. Judicial immunity

Judicial immunity also has immunity under the Constitution of Somalia which gave an absolute immunity or total immunity as well as the Judicature Act of 1962 and has in twofold: it encourages judges to act in a “fair and just” manner, without regard to the possible extrinsic harms their acts may cause outside of the scope of their judicial work. It protects government workers from harassment from those whose interests they might negatively affect. Under article 106 (2) of the Constitution provides that no Civil or Criminal proceedings shall be instituted against a judge in respect of the exercising of any judicial function.

Does the Constitution Clearly Mention Executive Privilege?

As you dig through the Somali Constitution of 2012, you might wonder whether expressly or impliedly can be found the same immunity and privileges or powers was given to the ‘Executive Branch’ as discussed above of the two branches of the federal government and with co-equal power. Interestingly, it might come as quite a surprise to realize that the term is, in fact, not explicitly mentioned in the Constitution at all.

The Framers of the Somali Constitution of 2012 anticipated that Presidents might become tyrannical, and they accordingly conceived of two important mechanisms to hold Presidents accountable: impeachment and the opportunity to vote Presidents out of office on a regular basis. Because presidential elections only occur once every four years, however, impeachment is structurally the only emergency measure the Framers explicitly built into the Constitution to protect against a despotic commander-in-chief. Yet experience dictates that it is nearly impossible to remove a President from office via impeachment.

Article 92 of the Constitution describes the procedure for impeaching the president of Somalia

• The House of the People of the Federal Parliament can propose the dismissal of the President of the Federal Republic of Somalia if he is accused of treason, or gross violation of the Constitution or the laws of the Federal Republic of Somalia.
• The motion for dismissing the President of the Federal Republic of Somalia may be introduced by no less than one-third (1/3) of the total membership of the House of the People of the Federal Parliament, and may be presented to the Constitutional Court, which shall preside over the case to see whether it has legal grounds.
• If the Constitutional Court determines that the case has legal grounds, the President of the Federal Republic of Somalia may be dismissed by a two-thirds (2/3) majority vote of the total membership of the two Houses of the Federal Parliament.
• In the event of the dismissal of the President of the Federal Republic of Somalia, in accordance with Clauses 1-3 of this Article the Speaker of the House of the People of the Federal Parliament shall assume the duties of the President of the Federal Republic of Somalia.