Somalia: Commentary on Presidential Decree Legalizing 2016 Election
The delayed andmonopolized preparation forconducting parliamentary electionbefore August 2016 proves the failure of 2016 Vision packaged in 2013as a roadmapfor democratic state buildingin Somalia. Political malfeasance, brazen corruption, and international mismanagement haveimpaired the legitimacy and viability of the Somali state.
Almost all Somalis support democratic political election to be heldon scheduled time but they arealso against rigged, corrupt election process. The leaders and institutions – independent or not- of the federal and regional governments of Somalia forfeited theirresponsibility and credibility to design and deliver free and fair election. In fact, the recently appointed Special Representative of UN Secretary General (SRSG) Michael Keating found out that “the [Somali] population has low expectations of and little faith in government. In many areas, Al Shabab is more effective in providing security and rule of law-albeit their own brutal version- than government.”
On May 22nd 2016, in violations of the rule of law, good governance principles, andCommuniqué of the Somali National Leadership Forum (NLF) on April 12, 2016,President Hassan Sheikh Mohamud issued a decree that preempted the federal parliament from enacting 2016 election model and processand mandated the right away implementation of NLF decisions.The directive is in conflict with one of the provisions of NLF Communiqué which prescribes that “The 2016 electoral model and its implementation mechanism shall be tabled to the federal parliament for final endorsement [legalization].”
The NLF is an unconstitutional structure that puts the leaders of the federal and regional governments on an equal footing.Besides the breach of the constitutional principles on the separation of power and checks and balance, the president as a member of NLF does not have the exclusive legitimacy of changing the collective decisions of the Forum.
The electoral model, developed by the NLF, duplicated theGarowe Agreement between the Federal Government of Somalia and the Government of Puntland State of Somalia signed on April 4, 2016. The agreement went beyond the resolution of the disputed issue of electoral model based on 4.5 clan formula or on district-constituency and covered in detail 2016 electoral process, formation of Upper House of the Federal Parliament, 2020 roadmap, constitutional review process, federation process, development aid, security, and international guarantee for the implementation of the agreement. The agreement precluded negotiations and compromise amongSomali stakeholders on election objects, rules, and management.
Members of the federal parliament raised the defects and problems of partsof the proposed electoral process and formed a parliamentary committee to harmonize amendments and prepare a draft 2016 election law. But the parliamentary process has triggered the fury of the United Nations (UN), European Union (EU), African Union (AU), Inter-Governmental Authority on Development (IGAD), Ethiopia, Italy, United Kingdom, United States, and Sweden, as guarantors and witnesses of Garowe agreement and they issued statements badgering the federal parliament to “swiftly endorse (rubber stamp)” un-amended 2016 electoral model and process.
The local representative of the European Union issued a statement that reveals the confusion about the handling of 2016 election. The statement notes that the International Partners engaged with the federal leadership, the NLF, and ad hoc parliamentary committee to legalize the 2016 electoral process prior to the visit of the UN Security Council to Mogadishu on May 19 2016. For missing that dateline, the EU representative threatened with a review (withhold) of EU engagement and support to federal institutions and callfor an emergency international meeting on Somalia. The statement has been interpreted as saying that with the presence of foreign forces, the taking away of Somalia’s independence and sovereignty and “the Trusteeship under IGAD!!!” are real possibilities.
The concern of the Somali people is more about fairness, freedom, integrity, and transparency of the 2016 election process rather than about delay or division among parliamentarians. The incumbents of the federal and regional governments dominate the electoral commissions and selection of electoral colleges. Somalia should not undergo corrupt and intrusive political election that deepens existing fragmentation.
The President’s decree is composed of two articles: Article 1 mandates the implementation of electoral model adopted by the NLF on April 12, 2016. The electoral model will be used only for 2016 election after the expiration of the constitutional terms of the legislative and executive institutions. Article 2 stipulates the respect of the constitutional principle that all Somali constituencies [regions] including Mogadishu should have representatives at the Upper House of Parliament. Making reality on how Mogadishu representation will come about and the resolution of related grievances will be decided in the upcoming meeting of NLF.
In issuing the decree, the President did not refer to any constitutional and legal powers invested in him or to parliamentary legislation as required by articles87 (2) and 90 (f) of the provisional constitution. For all practical purpose, the President does not have any legitimacy to legalize electoral model and process without parliamentary approval. A parliamentary vote would have given the President the legitimacy to reject the approved electoral bill and force 2/3 super majority vote.
In a press conference, PresidentHassan adduced Orwellian reasons for his action. He clearly or implicitly said:(1) His action was prompted by the high probability that the international community might put Somalia under……. (Trusteeship under IGAD);(2) He wanted to prevent the flaring up of political tensionthat emerges at the end of federal government term [as a result of incumbent manipulations]; (3) He took in consideration that the majority of the members of the federal parliament wereagainst the proposed electoral model and he choose to avoid divided parliament.Parliamentary decisions are based on divided voting; (4) theurgent need to hold parliamentary and presidential election on schedule [after three and half years of calculated delay].
In the meantime, President Hassan confessed that many Somalis will disagree with his action of legalizing disputed electoral model. Nevertheless he admonishedagainst manifestations of protests and disobedience in reaction to this anti-constitutional action. He made clear that protests and political gathering will be labelled as security disturbances.
The Speaker of parliament obstructed the parliamentary process and delayed the voting on 2016 electoral model under the excuse that the NLF will have an emergency meeting on the amendment measures raised during the parliamentary debate. But the 2-daydelay of the voting was used to prepare the decree blocking any parliamentary action.
Therefore, the claimed delay was due to the insistence of the international community on not amending the NLF proposed electoral model and process and to the vacillationof the leadership of the parliament. The decree does not resolve the outstanding problems of unfairness, restricted public participation, and monopoly of election preparation and management. Rather it reinforces the public perception of lawlessness, abuse of power, and growing kleptocracy in Somalia.
In the departure of the President abroad few hours after signing the decree, the SRSG took the airwaves inside and outside Somalia to justify and defend the action of the president and repeat the warning that the international community will not welcome and tolerate objections. Hetwitted: “Congratulations to President Hassan Sheikh for legalising 2016 Somalia electoral process. Implementation schedule starts today.”Against the widespread view that there are no whatsoever foundations for the legitimacy of the decree, the SRSG argued that the president has the authority to issue such decree. The principal interlocutors of the SRSG are the President and the Prime Minister who have personal interest in 2016 the election.
In two violations of the provisional constitution, the international community were displeased with the president’sdecree for theremoval of the president of the Supreme Courtfrom office without due process but it is now elated with president’sdecree that usurped the constitutional duty of the parliament and other Somali stakeholders. Thus, Somalia returns to the era of personal rule with presidential decrees.
The will of the international community could prevail but unless the credibility and fairness of the electoral model is substantially improved, the public trust in government will suffer.This will boost the trust in the justice and security of Al Shabab.
Mr. Mohamud M Uluso