• Research,
  • Somaliland

    • Executive dominance in Somaliland legal system. Khadar Qorane

    By on September 11, 2019

    Introduction.

    Somaliland is a self-declared sovereign nation in the horn of Africa re-claimed its independence from the rest of Somalia in 1991. Somaliland has been enjoying the peace and vibrant democracy for the last 25 years. In reference to the international law, statehood features including permanent population, defined territory and state currency are observable. According to the provisions of Somaliland’s constitution, [1](article2), states that the structure of the state shall consist of three branches which are: the legislative, the executive and the judiciary. The separation of the powers of these branches shall be as set out in the Constitution. Each branch shall exercise independently the exclusive powers accorded to it under the Constitution.  

    The constitutional referendum has been made in May 2001, were 79% of the polled population has approved the constitution[2]. Within the constitution multiparty system, politics and democratic elections are called. Since then, Somaliland has held a serious of challenged elections at different levels including the local councils, presidential and parliamentary elections. Elections become well known and a familiar manifestation in Somaliland. Somaliland people have seen the elections as a pillar of democracy and a gateway to international recognition that can enable the voters to choose preventives who will exercise a public mandate on their behalf.

    Then again, constitutionally Somaliland chosen presidential system of government where the executive power is undivided and the president freely appoints and removes the chief justice, national justice committees and secretaries of the state. therefore, a dubious question regarding that the three government balancing branches could be effective has been raised by the public and this article will solely reflective on that question.

    Does the executive dominate the Somaliland legislative process?

    Constitutionally legislative branch of the government should be independent, and both houses (the Guurti and representatives), should have the legislative powers of the government of Somaliland as itemized in article 38 (sub 1) of the constitution of the Republic of Somaliland, ‘’The legislative powers of the Republic of Somaliland are vested exclusively in the Parliament which shall consist of two Houses – the House of Representatives and the House of the Elders. The power to legislate cannot be transferred to anyone outside the Parliament[3]’’. However, referring the article same article (Article 38, sub2), indicating that ‘’All bills passed by the Parliament shall come into force when the President publishes them in accordance with the Constitution[4]’’, the president and his cabinet disproportionately used their power to delay to sign and publicize all bills that they have interests for personnel and individual business purposes, one of the most argued and still pending for the president’s final approval  and his minister of energy and minerals due to the interest of the competing companies include the electricity act, law # 81, 2018.   This act has been passed by the parliament and the president endorsed but again the president and his minister of energy requested to retrieve for an unknown reason, in which many people believed that this is a political motive in which private companies are involved.

    In Somaliland, a case study initiated by legal assistance for economic reform in May 2016, conveyed that The cost of electricity in Somaliland, at approximately US$1 per kilowatt, is one of the highest in the world. This is in stark contrast to rates in neighboring countries such as Ethiopia, which is able to source electricity at approximately US$0.05 cents per kilowatt. High electricity costs in Somaliland hamper the development of the manufacturing sector and establishment of enterprises, acting as a constraint on economic growth and development.[5] The reason behind is lack of regulatory framework, policy and laws which has resulted in scholars and business people to push the development of the law # 81, 218, and communities appreciated, but regrettably, the executive dominance of Somaliland legal system resulted that dreams of the citizens become untrue.

    Does executive dominate the judicial decisions?

    Judicial independence is fundamental to a democracy and the rule of law in every state on the planet. The doctrine of the separation of powers (SOP) is to avoid the risk ‘tyranny’ of absolute power in government and to protect the citizens from abuse of government power[6]. This is partly achieved by the rule of law, a separate and independent judiciary, judicial review, and legislative or constitutional protection of civil rights (Alvey and Ryan 2005; 2006). Judicial branches differ how they come to power, and it depends on the state’s legal system, For Somaliland case, the President in consultation with the Judicial Commission and having considered the level of education, professional experience and good character of the appointees, shall appoint the Chairman and judges of the Supreme Court. The appointment of the Chairman of the Supreme Court is subject to confirmation by the Houses of Parliament at a joint sitting which shall be held within three months of the date of the appointment. The highest-ranking judge in seniority among the Supreme Court judges shall act as the Deputy Chairman of the Court (Article 108, of the constitution). Then again, most 7 members of the judicial commission comes on power by the will and appointment of the president excluded only two members coming from the public with a selection of the house of elders. The Judicial Commission is the body which directs the administration of the Judiciary, and shall consist of the following:

    • The Chairman of the Supreme Court Chairman
    • The two Supreme Court judges who rank highest in seniority Member
    •  The Attorney General Member
    •  The Director-General of the Ministry of Justice Member
    •  The Chairman of the Civil Service Agency Member
    • Two members selected from the public once every two years by the House of Representatives, one of whom to be chosen from among the intellectuals and the other from the businessmen, and
    • two members to be selected from the public once every two years by the House of Elders, one of whom to be chosen from among those who are well versed in the traditions and the other from the religious scholars.
    •  The quorum for the meetings of the Commission is (7) members.
    •  If the Chairman of the Supreme Court is unable to fulfil the duties of chairing the Commission because of reasons of health, holidays or on vacating his office, the member of the Commission who is the Supreme Court judge with the highest rank in seniority, shall act as the temporary chairman. The Secretary of the Judicial Commission shall be the Chief Registrar of the Supreme Court (Article 107, of the constitution). Furthermore, the president can expel the chief justice any time they develop disagreement[7].

    The research found through disk review that constitutional set up of Somaliland state has contributed more on the executive dominance of Somaliland legal system and functions of both judicial and legislative branches of the government. Prominent cases witnessed that executive branch particularly the president dominate) the judicial decisions include all political cases, political detainees freed by courts after expressed that they have no guilt has been detained again with the order of the minister of interior. Civil cases decided by the court are still pending for law enforcement due to a conflict of interest for police, cabinet members or the president of the Republic of Somaliland.  On 09th May 2019, Somaliland police arrested parliamentary member (Xildhibaan dhakool)[8], after he criticized government on his press conference and that the national independence day covers no widely to all regions and communities, for reason that SNM (Somali national movement) who are those liberated Somaliland and their affiliated clans dominate the celebration of this day. The court ruled that he immunity deserves arrest unless the parliament removes immunity from him, but awkwardly the pm is still in confinement by order of the executive.

    Conclusion: towards executive dominance of Somaliland legal system.

    Through general observation and disk review, the search found that Somaliland’s executive branch of the government has exceptionally dominated the other branches of the government. The theme of this paper is the demonstrate the executive dominance to other constitutional branches of the government (the legislative and judiciary), power abuse, fallacious legal interpretation, lack of financial autonomy, clan dynamics and conflict of interest area central inspirations resulted in executive dominance to Somaliland legal system. For the judicial independence purpose, the constitution does not sufficiently guarantee its independence, hence, it is essential that law reform should be a priority on the agenda for the judiciary, including a constitutional amendment. The chance of Somaliland constitutional amendment is now very visible since prominent scholars and separate regions requested to have equitable justice in Somaliland.

    Executive controls the over the legislative process of the parliament as well, and apart from the above motivations including the limited legislative sovereignty, like other African countries, in terms of raw power, most African legislatures, like many legislatures worldwide, remain weak in accordance with the executive; though they are at best-emerging institutions in terms of their capacity to foster horizontal and vertical accountability (Barkan 2009)[9]. The nature of party politics, particularly a lack of party system institutionalization, largely accounts for the emergence of weak legislatures in Africa.

    Bibliography

    By: Khadar Qorane Yusuf, L.L.M candidate on advanced legal drafting and legal studies, Mekele and Hargeisa universities Join programs.

    Twitter @khadarQorane
    https://www.premierbank.so/

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