Introduction
The President of Somalia cannot formally introduce any bill; neither can he enter into the debate of the bills. However, within the Executive Branch, the President is effectively dictator (albeit benevolent one). As long as he operates within the confines of the law, he can direct any Council of Ministers to do anything he desires. Under article 99 Clause (C) of the Constitution states that the Council of Ministers should to initiate a drafted bill and table them before the Houses of the Federal Parliament.
Again, the President has no power or authority to issue an Executive Orders or Presidential Proclamations.[1] These questions may be a subject of political and academic debate since the adoption of the Federal Republic of Somalia. Their lack of definitive resolution stems from the ambiguity of the scope of executive authority vested in the President by the Constitution. As executive orders and proclamations are not defined in the Constitution, there is also no specific provision in the Constitution authorizing the President to issue executive orders and proclamations.[2]
Regarding the bill, the president possesses an absolute powers to consent the bill in order to bring them into law; Article 90 Clause (f) in the Constitution of Somalia- When a bill has been passed by the Houses of Parliament, it shall be presented to the President and the President shall declare either that he assents or vetoes the bill.[3]
The Apex Office is influenced by the following laws; –
Upon taking the apex office, President Hassan sheikh who is a current President of Somalia dissolved two Constitutional Commissioners that did not go through the proper procedures. The Presidential Decree cancelled Presidential Decrees No. 357 and No. 358 in order to streamline the official process of establishing the Judicial Service Commission and the Independent Anti-Corruption Commission on October- 09, 2022. Additionally, all of the decisions made by these two independent Commissions during their existence were also annulled.[4] The Former President Mohamed Abdullahi Farmajo signed the two Commissioners mentioned above which were approved by the 10th Parliament’s Lower House but the Upper House of Parliament did not at the time approve it. Yet the current President is doing the same cause of actions that he rejected from his predecessor and had revoked with his 2022 Decree.
I. Ratification of East African Community Treaty (1999) by the Federal Parliament
Somalia belongs to dualist tradition which views international law and municipal law as two distinct legal systems. Any international agreements signed by the Executive branch of government is a constitutional mandate to be approved by the Federal Parliament.[5] Due to the influence on the nation’s highest office the above mentioned Treaty was first brought when it was not translated into official language (Somalis) before the National Assembly (Lower House) in contravening with article 5 of the Constitution and Article 1 of Rules of Procedure of the 11th Parliament of Somalia. It was rejected by the Federal Parliament until such treaty is written in the Somali Language.
When the treaty was brought back for its first reading, the Foreign Committee of Parliament abruptly asked the Parliament for its final confirmation or approval of the agreement without referring to any further readings. Under article 84 of Rules of Procedure of the 11th Parliament states that every bill must be read before the National Assembly (Lower House) three different times, on three different days, before it becomes valid law.
Remarkably, the treaty or international agreement will follow the same legal procedures as domestic bills, requiring three readings before the National Assembly and even the assent of the president.
Honorable Yusuf Husein Gamaadiid who is a member of the current parliamentarian noted in that day that ‘… the reason for this commotion we are causing now is that the procedure was messed up. We all vowed to refrain from taking up unfinished business, and I warn to my fellow lawmakers to adhere to the established procedures of this House….’ However, the EAC treaty was approved by a majority vote of 148-150 present, even without following the aforementioned procedures.
II. Constitutional Amendment Bill 2024
Recent constitutional amendments have frequently become a ‘do or die’ situation. This is particularly true of the current basic structure amendment, which has generated debate over a number of issues, including the legitimacy of parliament’s powers to do so. The parliament is a constitutionally mandated organ with powers to amend the constitution under Article 71 of the Constitution for the Senate and Article 63 for the National Assembly, respectively.
A comprehensive procedure for both flexible and rigidly entrenched provisions for the amendment of the constitution was laid down in Chapter 15.
It was contended that a deliberate failure by the state to undertake through civic education and other relevant stakeholders rendered the constitutional amendment bill so pointless. Such attempt to subvert the people’s free will to exercise their sovereign power will compromise on the people’s ability to exercise free will which is a violation of National Values and Principles of Good Governance as espoused under article 3 of the Constitution.
The constitutional amendment bill was in form of an advice and to some extent direct influent by the current President of Somalia. Prof. Samater Warsame, a Senator in the Upper House, expressed his views by stating that instead of the Constitutional amendment bill comes from the Parliament, it comes from the office of the president. Having not originated from Parliament, as neither of the two houses’ initiated the process, the Bill is devoid of constitutional backing stipulated under article 3 as mentioned above.
According to Honorable Member of Parliament Said Ali, over fifty (50) members of the National Assembly requested that the vote be conducted in secret ballot; however, this request was denied.
It is worth noting that, this case was not invited by any Court to determine whether the State or the Apex Office, for the purpose of Constitutional amendment can purport to directly exercise sovereign power by virtue of the Constitution of Somalia.
III. Somalia-Turkey Maritime Defence and Economic Pact
In less than three hours, the two houses of Somalia’s parliament voted 213-3 to approve a defense agreement with Turkey, which was approved by the country’s Cabinet Ministers in the same day on 21st February-2024. Because of this short distance which were presented to such document before the federal parliaments was under the directives of the president. The President while addressing the media at State House-Villa Somalia said that; ‘…I am the president of this country; nobody else can talk about its independence except for me.” The most significant aspect of this agreement is what I stated before the legislatures: we concealed in the best interest of this nation… the Government Gazette will publish this agreement to see our citizens….’
Hon. Mohamed Ibrahim Moalimuu as a member of Parliament remarks that;-
‘… It is indeed very unfortunate that the Somali Federal Parliament approves a Defense & Economic pact between Somalia and Turkey without even reading the pact & obtaining the original copy. Today’s endorsement was not done in accordance with law or the right channel….’
What took place that day; –
- The principle of parliamentary supremacy was violated by the executive branch of government. The idea of Check and Balances is that one arm of government cannot take decisions without being scrutinized or called to account.
- The Defense Minister, who is not a member of Parliament, read the text of the written bilateral agreements before the approval of the parliaments.
- Neither the current Constitution of Somalia nor the Upper House Rules of Procedures specifically address the Senators’ involvement in relation to international law, although they were involved in its approval in that day.
- Once the agreement is submitted to the House, it must be referred to the Defence Affairs Committee. However, this agreement is not examined by the committee of parliament’s Defence affairs.
- Media Outlet was sent out of the Parliament to ensure fast information about the debates in case of any.
- Above all, the President of Somalia himself requested a favor from the two Houses of Parliament in order to approve the agreement between Somalia and Turkey, which the parliaments approved by raising their hands.
Lastly, the law cannot be kept a secret from the general public. For the majority of us, this is an obvious and fundamental tenet of any legal system that upholds the rule of law and democratic accountability.
[1]See, the Proclamation by the President of the Federal Republic of Somalia, dated 30/June/2014 https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/SOM_2014_Proclamation.pdf.
[2] John Contrubis, Executive Orders and Proclamations (1999), available https://sgp.fas.org/crs/misc/95-772.pdf.
[3] See, article 91 (3) Rules of Procedure of the 11th Parliament, The President must, within thirty (30) working days, sign it or send it back to the House, adding the reason for returning a bill that has passed the House of People, If the 30-day period is insufficient, the president may request another period of not more than 30 days.
[4] VOA, ‘‘The Commission on Judicial Service and Anti-Corruption were dissolved by President Hassan Sheikh’’ (2022) Somali Version at https://www.voasomali.com/a/madaxweyne-xasan-sheekh-maxamuud-oo-kala-diray-guddiyada-adeegga-garsoorka-iyo-la-dagaalanka-musuqmaasuqa-/6782232.html.
[5] See, Article 90 of the Constitution 2012 and read with Article 110 of Rules of Procedure of the 11th Parliament
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