RULE OF LAW OUT IN SOMALIA: A GRAND FINALE FOR A ROGUE SOMALI PRESIDENT ASSISTED BY ROGUE REPRESENTATIVES OF THE INTERNATIONAL COMMUNITY
By Abdi Hosh Jibril
During the last 4 years, there has been steady descent on the efficacy of “Rule of Law” in Somalia despite a general commitment made by the Somali people in August 2012 under a new Provisional Constitution anchored on international standards of Rule of Law, and this document is the cornerstone and basic foundation under which all other social spheres of law, justice and human rights were to follow from. More importantly, the international community led by the European Union, USA, Sweden, Norway (the donors) and the UN, AU and IGAD placed enormous amounts of money and resources to the tune of hundreds of millions of dollars towards the establishment of fundamental principles of Rule of Law in Somalia in the last 16 years, and rightly so, since the root cause of the protracted Somali civil conflict is correctly identified as the absence of Rule of Law.
Today, the 22nd of May 2016 should mark as a sad day in Somali history and also a reminder of the political bankruptcy of the office of the Somali President H.E Hassan Sheikh Mohamud and the hypocrisy of the international community fronted by UNSOM. President Hassan Sheikh Mohamud has today illegally signed a Presidential Decree legalizing a flawed electoral law that was tabled in parliament on April 30th, 2016 by the government and that was actively under debate in parliament as of Saturday, May 21, 2016.
Under the Provisional Constitution adopted on August 1, 2012, there are no provisions authorizing an executive order to rule on electoral processes. As a matter of fact, that authority is preserved for parliament and contingent institutions it lawfully creates such as the National Independent Elections Commission (NIEC), a body that now exists.
Article 47 of the Provisional Constitution states as follows:
“The regulations concerning political parties, their registration, elections at the Federal level and the National Independent Electoral Commission shall be defined in special laws enacted by the House of the People of the Federal Parliament of Somalia” Article 111G (2) of the Provisional Constitution further provides the National Independent Elections Commission (NIEC) with the clear mandate to conduct both presidential elections and also elections of members of the federal parliament. In other words, the Constitution does not contain any provisions authorizing the executive to interfere with electoral processes.
More fundamentally, the Presidential Decree of the President contravenes the very important principle of separation of powers enshrined in the constitution which compartmentalizes the powers of the three branches of government; the Legislator, the Judiciary and Executive as reflected in Article 3 (4) of the Constitution. It also has the stench odor of conflict of interest as the current President HSM is also a presidential candidate in the 2016 elections whose electoral model he shamelessly now makes an unconstitutional decision over.
Among the reasons proffered by the President for his illegal action is that parliament dragged it’s feet for a couple of days in endorsing (not deliberating) the electoral model offered by the National Leadership Forum ( seven male members) and dated April 12, 2016. Even though Parliament knew that the model was flawed, it was genuinely trying to come up with an acceptable model that would cause no harm and on Saturday, the 21st of May 2016, there was a consensus to forge a middle ground. That middle ground was centered on ensuring a credible model on the Upper House and Gender Parity in the next parliament. With the complicity of Speaker Jawari and the international community, the proceedings before parliament were delayed for a few more days to allow for time to hatch this illegal plan. So it is not fair to blame parliament for this debacle.
Defense of Rule of Law and Not Parliament
It should be noted that the tenure of Parliament must end on August 20, 2016 and that no one, including yours truly will defend an extension of Parliament. Although there are plenty of Parliamentarians worthy of the appellation “ Honorable”, there are equal if not more of them who are less than honorable as Parliament has become associated with corruption and rightly so.
Therefore, the debate before us is not about the preservation of the current Parliament but about Rule of Law. The foundational principle of Rule of Law must be defended here, considering that the suspension of the 1961 Somali Constitution by the Military Junta in 1970 is the root cause of the Somali civil war.
Article 4 (1) of our present Constitution states clearly that:
“..The Constitution of the Federal Republic of Somalia is the supreme law of the country. It binds the government and guides policy initiatives and decisions in all sections of government”.
It so happens that the very “Authority” that was trusted to safeguard and protect the Constitution is now engaged in thrashing it. The President of Somalia is under Article 87(1) (c) of the Constitution, the “Guardian and promoter of the founding principles of the Constitution”. Article 87 (2) of the Constitution emphatically states that the President “ shall carry out his duties in accordance with the Constitution and the other laws of the Federal Republic of Somalia”.
Against this background, the actions of the president with respect to the Presidential Decree is illegal and suspect and must be opposed on moral and constitutional grounds, but he has accomplices in the form and shape of an amorphous group called the International Group (Nairobi/Mogadishu based) who are not in anyway accountable to the Somali people.
The International Community
The International community led by UNSOM has today exposed itself glaringly as corrupt with no moral fiber in its comportment, in so far as notions and principles of Rule of Law, justice and human rights are concerned. It is an open secret that the international community representatives to Somalia hatched this illegal and unconstitutional scheme, and that President HSM dutifully played his role as a minstrel in a show.
The Somali public suspected for over a decade that the So called International community was not committed to Rule of Law, was out of touch with the reality on the ground and that Somalia was used both as a social experiment and also a launching pad for the careers of mediocre and inept diplomats from the North.
The International community has been engaged in a “ ticking-the-box” exercise in Somalia couched as policy-making marks for the better part of the last 16 years with a cavalier attitude of “ Damn the Consequences”. This latest scheme is the most ugly and dramatic consequence of this attitude and the Somali public would pay for this for years to come.
Where was the international community for the last 4 years when the President enjoyed a clear mandate to affect an electoral model as directed to him under the Constitution? Why this frantic 11th hour spectacle of pyrotechnics of illusions to project a zeal for democratic elections when its members have been silent on the need for political reform during the last four years? Because, these people have been writing “feel-good” communiqués for the past three and half years on “ political reform, constitutional development, enhanced security and democratizations”, all of which did not reflect the concrete reality on the ground.
And now when the chickens came home to roost, the most imaginative thing they could think of out of this political and security mess is:
To pressure a certified corrupt president to go the extra mile and engage in the most corrupt of political manners, the stomping on the very foundation of Rule of Law, The Constitution.