On March 31, 2024, Somalia’s President Hassan Sheikh signed a bill into law amending the Provisional Constitution of 2012. The approved proposals were four out of fifteen constitutional chapters that are due for amendment as part of law overhaul. Voting will take place for the remaining eleven (11) Chapters at a later month.
Prominent scholars and legal experts have expressed disapproval of the proposed Constitutional amendments, citing the possibility of a new constitution being drafted by the end of 2024. Taking into account that the Bicameral Federal Parliament is expected to review the 145 articles and 15 Chapters of the existing Provisional Constitution. The political figures, including former presidents and state leaders, also oppose these changes, citing concerns about insufficient consensus.[1] However, some People see the Four Chapters of the Constitution as an important step in the nation’s democratic process and as a way to protect the freedom of expression and information within national borders.
One major factor contributing to Somalia’s political and constitutional instability was the ease with which political leaders subverted constitutionalism by arbitrarily changing constitution to suit their political agendas.[2] The fundamental argument behind the constitution’s proposal was that it would consolidate power in the hands of the executive branch, particularly by allowing the President to appoint a Prime Minister without the consent of Parliament.
The current parliament of Somalia, which is reviewing the constitutional amendment bill, was not elected by the general public or by popular vote. However, they emerged as an indirect election, arranged by state leaders and other political figures, who decided to inaugurate the Federal Parliaments to safeguard their own economic and political interests rather than the people’s desire.
Constitutional Amendments Versus Constitutional Revision
The term constitutional revision is used in the context of changes to a state constitution. The exact definition differs from state to state and is established in state constitutional law and case law. A constitutional revision is different from a constitutional amendment. While a constitutional amendment is written to amend specific articles or sections of a state’s constitution, a constitutional revision is a fundamental and holistic change to a state’s constitution.[3]
Some countries (e.g. Austria, Bulgaria, Costa Rica, Nicaragua and Spain) distinguish between a constitutional amendment and a constitutional revision, with the latter often requiring a higher threshold for the adoption of an entirely new constitution compared to a constitutional amendment. Such a distinction follows the assumption that the authority to amend a constitution implies the introduction of adjustments, modifications or changes within the constitution but does not include the power to exchange/replace it or its original structure.[4]
Acknowledging the concept of the people as the pouvoir constituant (the power that creates the constitutional order) in democratic societies, a total revision in these countries usually requires the people’s immediate involvement, either through the election of a constituent assembly (e.g. Bulgaria, Costa Rica and Nicaragua) or via an obligatory referendum (e.g. Austria and Spain).[5]
In the Somali context, the terms ‘Constitutional amendment and Constitutional review’ are used synonymously by the constitution without any additional classifications. For instance, Chapter 15 of the Constitution, is titled “Amending The Constitution” lays out the procedures for changing the Constitution while also the same chapter establishes the Independent Provisional Constitution Review and Implementation Commission. whereas Article 79 of the Constitution provides that a draft legislation consists of ‘Reviewing, replacing, and proposing amendments to the Constitution’.
Understanding this distinction requires an appreciation of the alternative ways of understanding constitutional change and whether a specific change should be understood as an amendment or simply the creation of a completely new constitutional order.[6]
Constitutional Amendment Bill
The Constitutional Amendment Bill refers to a proposed amendment to the Constitution. The procedure for modifying the constitution is outlined in Chapter 15 (Article 135) of the Somali Constitution.
An ‘amendment’ denotes the idea of ‘correction/repair or improvement’ (Oxford English Dictionary) and, for most commentators, constitutional amendment rules are designed to serve exactly these purposes – that is, to allow for the correction of or improvement upon prior constitutional design choices in light of new information, evolving experiences or political understandings.[7]
The majority of Constitutions stipulate that amendments must pass a special procedure that is more rigorous than what is needed for ordinary legislation before they can be implemented. Supermajorities in the legislature, direct voter approval in a referendum, or even a combination of two or more separate special procedures are examples of such special procedures.
The Constitution of Somalia can be amended by an Act of Parliament, but special procedures and requirements apply to the passage of constitutional amendments. There are however slight differences on further procedures required to bring such Acts or amendments into force.
STEPS IN AMENDING THE CONSTITUTION [8]
- Proposals to amend the Constitution are typically introduced in the form of Bills. These Bills are first received by the Senate Speaker or the Speaker of Lower House of Somalia and sent to the Provisional Constitution Review and Implementation Oversight Committee for scheduling for the Order Papers to be introduced in the Houses. The first reading of the bill signifies the start of the legislative process. It is noteworthy that each House of the Federal Parliament shall elect five (5) of its Members as members of the Oversight Committee.[9]
- Ordinarily, a bill is reread twice and the general principles discussed in plenary before it is referred to a committee within the Federal House that is specifically tasked with studying and passing legislation pertaining to constitutional amendments.
- The Oversight Committee will review the bill and has the authority to call for public comment sessions and other hearings and also engage Federal Member State legislatures and incorporate the Federal Member States’ harmonized submissions into the proposed amendment.[10]
- When the Houses ultimately determines whether the constitutional amendment bill should become a law, a third reading will be the last phase of the process.
Assent to Constitutional Amendment Bill
The Constitution does not specifically define the President’s role in amending it, nor does it state whether he has the authority to veto or assent. However, the president of Somalia said that the completion of the Constitution is the cornerstone for the development of democracy, equality for all Somali citizens, and the strengthening and building of effective government institutions during the signing ceremony of the constitutional amendment bill on State House ‘Villa Somalia’.
Although there has been discussion recently regarding whether the President’s assent is required to support the constitutional amendment process, the two-step proposal and ratification process highlights the gravity of a document that serves as the “grundnorm” of Somalia and from which all laws are derived.
In practice, the President must assent any bill before it becomes law. A bill that has been passed in compliance with the legislative process outlined in this Chapter, signed by the President of the Federal Republic, and published in the Official Gazette is considered a law, according to Article 85 of the Constitution.
The question then arose as to whether the amendments could become valid without the President giving his assent to it.
The following prerequisites need to be met before and after the proposed constitutional amendment; –
- The Constitutional amendment bill may be initiated by the federal government. (It’s obvious that they are referring to the Council of Ministers even though they did not specify ),[11]
- Federal Member state governments. In federal states, a representative organ of the states, regions or provinces also generally has the right to suggest amendments, be it through the upper legislative chamber at the national level.[12] Under article 71 of the Constitution of Somalia states that The Upper House of the Federal Parliament represents the Federal Member States;
- Members of the Federal Parliament may initiate the Constitutional amendment. [13] Both Houses of the Federal Parliament should participate in amending the Constitution in accordance with Chapter 15; The two Houses may also form a joint committee to facilitate their work including the constitutional amendment bill.[14]
- In about 40,000 citizens may initiate the Constitutional amendment, Make this kind of request, typically through a petition. A clause like this supports the notion that a constitution is a living document that originates with the sovereign people and is amenable to taking their concerns into account.[15]
- By Simple Majority of the Parliament. The Federal Parliament adopts a proposed amendment only after approving it on a final vote in the House of the People by at least two-thirds (2/3) of the existing members, and on a final vote in the Upper House of the Federal Parliament by at least two-thirds (2/3) of the existing members as per article 132 clause 8 of the Constitution.
- Following parliamentary approval, a constitutional referendum will be held in accordance with Article 132, Clause 10 of the Constitution. The same constitution provides under Article 141,
‘Whether required by this Constitution, by law, or for another reason, in conducting a referendum, including the referendum to validate this Provisional Constitution, in conducting a referendum the authority conducting that referendum shall ensure that all eligible voters have opportunity to express their views in a free, direct and secret manner and in accordance with a law that the Federal Parliament shall enact establishing the procedures for referendums’.
Regarding the consequences of breaking the procedures governing constitutional change, Somalia’s constitution remains silent. This pertains to the question of whether or not constitutional amendments can be subject to judicial scrutiny.
Conclusion
The constitution holds a higher status than other laws since it is the fundamental legal framework of a nation. It is the foundation that describes how the government, and its judicial branches are organized. The constitution, which is the foundation of all governmental authority, establishes the boundaries and modes of operation for the various branches of government as well as how they relate to one another.
It is the duty of the framers of the Constitution to ensure its supremacy and to protect it from the two main dangers to which it may be exposed: easy alteration, and the likelihood of its provisions being infringed by enactment of laws. These dangers could be met by the prescription of rigid rules for the amendment of the constitution, and by the establishment of an independent judiciary with powers to declare avoid all laws ultra vires the Constitution.
Constitution review in other democracies has taken a pattern where political leaders, interest groups, civil society groups and state actors hold consultations on key areas of review through a people driven process as the Constitution is ultimately owned by the citizens.
The recent constitutional amendment bill of Somalia has been hampered by a lack of awareness by the average citizen on the nature and contents of the Bill; this deficit merely highlights the importance of collaboration by all stakeholders, in ensuring that the process of engagement is as inclusive as possible.
References
[1] FRICAN News, ‘Somalia parliament passes bill allowing President appoint PM’ (2024) African Newspapers, at https://www.africanews.com/2024/03/31/somalia-parliament-passes-bill-allowing-president-appoint-pm//.
[2] Charles M. Fombad, ‘Some Perspectives on Durability and Change Under Modern African Constitutions’ (2013) International Journal of Constitutional Law, Volume 11, Issue 2, Pages 382–413, https://doi.org/10.1093/icon/mot001.
[3] BALLOTPEDIA ‘Constitutional revision’ available at https://ballotpedia.org/Constitutional_revision.
[4] Markus Böckenförde, ‘Constitutional Amendment Procedures’
[5] Ibid (Note No. 3)
[6] Heinz Klug, ‘Constitutional Amendments’ (2015), Annual Review Of Law And Social Science, Volume 11, https://doi.org/10.1146/annurev-lawsocsci-120814-121523.
[7] Rosalind Dixon, ‘Comparative Constitutional Law’ (2011) Published by University of Chicago, USA, at pg. 6
[8] See, Article 132 of the Constitution
[9] See, Article 133 (5) of the Constitution
[10] See, Article 132 (6) of the Constitution
[11] See, Article 99 Para. C
[12] See, Article 132 of the Constitution
[13] See, Article 132 of the Constitution
[14] See article 62 of the Constitution
[15] See, Article 132 of the Constitution
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