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Warbixin
iyo talooyin ku saabsan wax-ka-beddelka Dastuurka Qaranka Somaliland
Report and Recommendations on the proposed changes
to the Constitution of Somaliland
Prepared by
Somaliland Forum
Constitution Ad-hoc Committee
November 1999
Hordhac:
Ururka Somaliland Forum oo xubnihiisu kala joogan aduunka
darafyadiisa kala duwan, oo ku xidhiida isgaadhsiinta Internetka, iskuna
bahaystay wax-u-qabadka ummadda Somaliland, ayaa dhowaan u xil saaray xubno ka
mid ah ururka eegista talada wax ka beddelka Dastuurka ee Dawladdu soo jeedisay
bishii July 1999. Xubnahaas oo xeel iyo aqoon gaar ah u leh cilmiga Dastuur
qoridda, waxa loo direy in ay soo dersaan, talooyinna ka soo bixiyaan,
ansixinta wax-ka-beddelka Dastuur Qaraameedka Somaliland.
Dhammaan xubnaha ururku, maamulka golaha dhexe iyo guddida cilmi baadhista Dastuur Qarameedku waxay ku rajo wayn yihiin in talada Wax-ka-beddelka dastuurka ee aanu halkan ku soo gudbinay ay noqoto mid wax ku ool ah, doodda dastuurkana aqoon iyo aragti gaar ah ku kordhiso. Ururka Somaliland Forum wuxuu si gaar ah ugu baaqayaa kuna dhiiri gelinyaa in dadweynaha Somaliland ay u feejignaadaan, kana qayb qaataan doodda Dastuur Qarameedka. Sidoo kale ururku waxuu ugu baaqayaa labada Gole’ iyo Guddida Gaarka ah ee Dastuur Qarameedka in ay ka digtoonaadaan ansixin degdeg ah oo aan laga baaraan degin dadweeynahana talada laga qayb galin.
Waxa kale oo uruka Somaliland Forum ugu baaqayaa saxaafada
Somaliland in ay waajibkooda ka gutaan jahli-bixinta, warfaafinta iyo
wargelinta dadwaynaha ee doodda iyo anshaxinta distoor qarameedka.
Guddiga Dhexe ee Somaliland Forum waxay mahadnaq kal iyo
laab ah usoo gudbinayaan xubnaha Guddihoosaadka Dastuurka Qaranka oo muddo
gaaban kusoo gebagebeeyey howshii Forumku u wakiishay. Ururka Somaliland Forum
wuxuu ugu danbayn u hambalyaynayaa dhamaan inta ku howshootay ama ku howlan
qaran-dhisida, dastuur-qorrida iyo doodaha la xidhiidha, iyo dib u dejinta
ummada, dayac tirka iyo daryeelka waddanka. Waxaanu Ilaahay (SWT) idinka
baryanaa inuu idinku garab galo. Aamiin.
Somaliland
Forum
Warbixin Guddi-Hoosaadka Beddelaadda Dastuurka:
Bishii Ogost 1999 dhammaadkeedi ayaa Guddida Dhexe ee
Somaliland Forum noo xilsaartay in aanu darisno oo aanu Forumka u soo jeedino
aar'adayada iyo tilmaamo ku saabsan beddelaadda ay Dawladu soo jeedisay ee ku
saabsan Dastuurka ummadda ee Jamhuuriyadda Somaliland. Waxaanu u mahad
celinaynaa Maxamuud Nuur (Dubai, UAE) oo Forumka u soo gudbiyay nuqul ah
Dastuurka cusub ee Dawladdu soo jeedisay, iyo Guddoomiyaha Forumka oo nagala
qaybqaatey gudashada xilkan.
Waxaanu daraasaddayada ku salaynay arrimahan soo socda:
·
Waxaanu eegnay
156kii qodob ee Dastuurkeenna iyo sida qodob kastaba beddelaaddu u saamaysay.
·
Waxaanu
derisney qodobodda la beddelay micnahoodu sida ay yihiin iyo beddelaaddu inta
ay ku koobantahay.
·
Waxaanu
faallaynay beddelaad kasta, annagoo eegnay qiimaheeda iyo faa'idada ama
dhibaatada ay u keeni karto umaddeenna iyo dalkeenna.
·
Waxaanu ka
fakarnay talo ahaan wixii Forumku u jeedin karo Dawladdeenna iyo dadkeenna,
anagoo tixraaceyna mabaa'diida ay dadkeennu ku caddeeyeen Shirarkii Burco,
Boorama iyo Hargeysa. Gaar ahaan, madax-banaanideenna, diimoqraadinimida,
xuquuqda qofka ee aasaasiga, dhismaha dawladda ee u qaybsan sharci-dejinta, fulinta,
garsoorka iyo shuruudaha dheelitirka awoodaha qaybaha Dawladda (checks and
balances).
·
Ugu danbayn,
waxaanu ka fikirnay tallaabooyinka uu Foorumku ka qaadi karo arrintan.
Dawladdu dastuurka cusub ay soo jeedisay waxa uu ka
koobanyahay 99 qodob. Laakiin, marka la eego 156ka qodob ee Dastuurkeenna, 59
qodob oo keliya ayaan waxba laga beddelayn; 19-na wax yar oo aan qiimo badan
lahayn ayaa laga beddeleyaa; 45-na waa la tirtiraya; inta kelana wax wayn baa
laga beddelayaa.
Guud ahaan, waanu fahamsanahay in dastuurku uu u baahan
yahay kabid yar (tusaale ahaan, tirada Xisbiyadda oo hadda ku kooban 3). Laakin
nalama aha in waqtigan loo baahan yahay beddelaadda ballaadhan oo ay dawladdu
soo bandhigtey.
Waxaanu soo jeedinaynaa in Guddi madaxbannaan oo Dawladda
iyo Barlamaanka ku jiraan loo xilsaaro in ay eegaan arrintan. Waxaanu kaloo ku
adkeynenaa Dawladda in si deg deg ah arrintaas loo dhammeeyo oo Afti
(Referundum) laga qaado ummada sida ku taal Dastuurka. Aftidu waa arrin loo
baahanyahay oo adduunka aynu ugu baaqi doono madaxbanaanideenna. Waxaanu soo
jeedineynaa in Guddiga Aftida ee Dastuurku dhigeyo (Qodobka 152aad oo
beddelaaddani soo jeedisay in la tirtiro) si deg deg ah loo magacaabo oo ay
dadweynaha u bandhigaan nuxurka Dastuurka, kuna abaabulaan oo ku dhiirriyaan in
ay dastuurka fahmaan, kana qaybqaataan aftida iyagoo adduunka oo dhan dhawaaqa
ummaddeenna gaadhsiinaya.
Waanu eegnay in beddelaaddu ay wax u dhimeyso
qarannimadeenna iyo madax-bannaanideenna. Marka aannu derisnay nuqulka
beddelaada aannu hadda gacanta ku hayno iyo dastuurka asliga ah (ee aan ahayn
nuquligii "draafka" ahaa aan la isku raacin shirkii Hargeysa), maannu
arkin wax dhibaato weyn u keeni kara
qarannimadeenna. Hase ahaate, waannu la soconnaa in dad badan oo dalkii joogaa
ay arritan ku kaceen, waax nagamida guddigeennana wuxu soo jeediyey in aanu
baadhis dambe u galo arrintaas. Go'aanka aannu arintaas ka gaadhnay waxa
saldhig u ah nuqullada aanu hadda gacanta ku hayno. Haddi ay jiraan wax aannanu
la socon, oo dib naloogu soo sheego beddelaad aannanu hadda ogayn waannu ka
fiirsandoonnaa. Laakin, hadda waxay nalatahay in aanay beddelaaddu wax dhibaata
ah aany madaxbannaanideenna u keeneyn.
Si kasta ha ahaatee, waxaanu aad iyo aad u diiddannahay
beddelaadda ku saabsan xuquuqda bani aadmiga ee dadkeenna. Waxaanu kaloo
dareenay qodobada aad moodo in ay Dawladda awooddeeda kor u qaadayaan, isla
markaana hoos u dhigayaan awoodda Baarlamaanka, gaar ahaan, Golaha Wakiilada oo
ah qaybta ugu horreysa waaxda xeerdejinta ee Dalka. Waxaannu kaloo
diiddannahay, beddelaad ku saabsan waaxda garsoorka.
Xubnaha Guddi Hoosaadka Dastuurku waxay isku raaceen in
aannu diyaarino warqad furan (open letter) oo aanu u dirno Dawladeenna,
Golayaasha Baarlamaanka iyo jaraa'idka Dalka, innagoo si qeexan u sheegayna
aara'deena. Ururka Somaliland Forum wuxuu naga oggolaaday taladaa ah in
waraaqdaa loo diro Dowladda iyo dadwaynaha Somaliland, waxayna Guddida Dhexe
ansixisey 1dii bisha November 1999. Waxaannu halkan idiinku soo gudbinaynaa
talooyinkii aannu Forum ahaan u soo jeedinay Umadda iyo Dowladda Jamhuuriyadda
Somaliland.
Ilaahay baa mahad leh.
GUDDI-HOOSAADKA DASTUURKA
Somaliland Forum
Ibraahim Xaashi Jaamac, Manchester, UK
Cabdillahi Cawad Cighe, Liverpool, UK
Jamaal Cabdi Gaboobe, Seatle, USA
Maxamad Suleiman Faarah, Toronto, Canada.
Waraaq Furan oo ku Socoto Dowladda Iyo Dadwaynaha Somaliland oo ku Saabsan Talda
Wax-ka-beddelka Dastuurka NUQUL KOOBAN |
Open Letter to the Somaliland Governament, Legislature
& the Public on the Proposal for Changes to the Constitution SUMMARY |
Waxa aanu nahay Forum caalami ah oo ay ku
bahoobeen muwaadiniin reer Somaliland ah oo ku kala nool cidhifyada
adduunyada, kuwaasoo, inkasta oo ay ka durugsan yihiin waddankii hooyo,
haddana ku wacad galay xoojinta aqoonsiga siyaasade-ed, kobcinta dhaqaale iyo
sareedada guud ee ummadda Somaliland. Ma aannu nihin urur siyaasadeed,
haseye-eshee waxaanu si xoog leh u danaynaynaa wax kasta oo taabana-ya
madaxbannaanida qaranka, dimoq-raadiyadda, xuquuqul aadami-ga iyo
xukun-wanaagga. Arrimahaas oo isugu soo biyo shubta nidaamka dastuuriga ah oo
hadda ku xididaysanaysa bulshadeenna, ahna ta casrigan u keeni karta bulsha
kasta xasilooni waarta iyo caddaalad. |
We are an international forum
consisting of Somalilanders living in the Diaspora who are committed, albeit
from a distance, to the strengthening of the political identity, economic
viability and general prosperity of the Somaliland nation. We are not a party
political organisation, but we feel strongly about the sovereignty of the
nation, democracy, human rights and good governance. Central to these issues
is the concept of constitutionalism which is taking root in our society and which
is ultimately the best guarantee for the long-term stability and justice in
any modern society. |
Waxaanu
dhugannay in sida uu dhig-ayo qodobka 154-aad ee Dastuurka Qaranku, aanay
banaanayn soo jeedinta wax-kabeddelka iyo/ama kabidda dastuurku ay xambaarsanaato
nuxur ka soo hor jeeda: ·
Mabaadi’da shareecada islaamka. ·
Madaxbannaanida iyo midnimada dalka
(Israacsanaanta dhul ahaaneed). ·
Mabaadi’da talo-wadaagga iyo hannaanka
xisbiyada badan. ·
Xuquuqda asaasiga ah iyo xorriyadaha
qofka. |
We note that under article 154 of the
(interim) Constitution, no proposed amendment, which conflicts with the
following can be made: ·
The
principles of Islamic Sharia. ·
The
sovereignty and territorial integrity of the country. ·
Democratic
principles and the multi-party political system. ·
Fundamental
rights and personal freedoms. |
Waxaanu,
sidaa darteed, derisney beddelaadda Dastuurka Qaranka ee dhawaan la soo
jeediyey annaga oo eegayna mabaadi’daa kor ku xusan. Mabda’ ahaan, inkasta oo
aanu oggolnahay in ay jiraan tallaabooyin lagu “toos-toosin” karo Dastuurka,
nooma muuqato in Dastuurku u baa-han yahay isbeddel xooga ah (156 qodob oo
lagu soo koobo 99) ka hor inta aan Dastuurka ummadda la soo hordhigin in ay
taageerto oo afti laga qaado. Waxaanu dareenay in wax-ka-beddelka lasoo
jeediyey loo arkey, sax iyo khalad kuu doono ha ahaa-dee, hindise ka yimid
hal dhinac oo Qaranka keliya (oo ah waaxda fulinta ama Dawladda). Waxayna noola muuqataa in casharkaa ugu
horreya ee laga baran karo arrintani siday u dhacday ay tahay in la sameeyo
Guddi ballaadhan oo waaxyaha Qaranka oo dhan matala, hoggaankiisana ay hayaan
waaxda xeer-dejinta (Baarla-maanka). Guddigaas oo loo xil saro in ay soo
jeedintan bedellaada Dastuurka si deg deg ah u eegaan, Baarlamaankana ay u
soo warbixiyaan. |
We have, therefore looked at the
proposed changes to the Constitution in the light of these principles. As a
matter of principle, whilst we accept that there are some provisions of the
Constitution which could do with “fine tuning”, we do not consider it so
flawed as to necessitate it being drastically changed (from 156 articles to
99) before it can be put to the nation for endorsement. We note that the
proposed changes have, rightly or wrongly, been seen as proposals emanating
from one branch of the government (i.e the Executive), and it appears to us
that the first lesson that can be learnt from this exercise, is the setting
up of a genuinely representative Commission lead by the legislature to
examine the proposals urgently and then to report back to Parliament. |
Annagoo ku salaynayna baadhitaankii aanu ku samaynay wax-kabeddelka dastuurka (nuqliga nasoo gaadhay), waxaannu ku faraxsannahay in aannu xusno in aan la taaban qodobada dhigaaya dowladnimada, dhulka, iyo muqaddisnimada madaxbannaanideenna (qodobada 1aad ilaa 7aad). Waliba, sidaannu kor ku xusnay, cidna uma bannaana inay soo jeediso wax-ka-beddel ama kabid dastuurka oo ka hor imanaysa jiritaanka Somaliland. Sidaa awgeed, waxaanu soo dhawaynaynaa hadalkii Madaxwaynaha ee 29/8/99 uu ka yidhi arrintan. Waxaannu ku adkeeneynaa cid kastaa oo soo jeedineysa beddelaad la isku raaci karo in lagu daro fiqraad cusub qodobka 154aad oo caddeyneysa, si aan loogu murmin, in wax allaale wixi beddelaad ah ee nuxur ku keeneysa madaxbanaanida JSL aanay bannaaneyn oo aan la soo jeedin karin. |
We are pleased to
note that, on the basis of our analysis of the amendments (i.e the copy we
have received), none of the articles which set out the sovereignty, territory
and sanctity of our independence (i.e. articles 1 to 7) are touched by any of
the proposals for change. Indeed, as we have noted above, no amendment of the
constitution, which conflicts with the sovereignty of Somaliland, can be
tabled by anyone. In this respect, we welcome the President’s speech on
29/8/99 on this issue. Nonetheless, we strongly recommend that, for the
avoidance of doubt, any new agreed amendments should include an addition to
article 154 which makes null and void any proposal or amendment which might
affect the independence (madax-bannaanida) of Somaliland. |
Waxaannu
soo dhawaynaynaa beddelaadda qodobka 11aad ee Dastuurka, kaasoo hadda ku
xaddidaya saddex tirada xisbiyada siyaasadeed ee dalka. Waxaanu aaminsahay in
beddelkani tix galinayo mabaadi’dii dastuuriga ahayd ee lagu dejiyey
shirarkii Borama iyo Hargeisa. In kasta oo ay tahay in laga digtoonaado wixii
dhacay, oo lagu xisaabtamo casharadii laga dhaxlay habkii xisbiyada-badan, ee
9kii sannadood ee midowgii ayaanka darnaa ee Somaliland/Somalia, haddana
waxaanu rajaynaynaa in aan lagu soo darin Masshruuca Xeerka Doorashada
(Elections Bill) wax si aan habbooneyn u xaddi-daaya xisbiyada siyaasadeed. |
We
welcome the proposed changes to article 11 of the constitution, which currently
limits the number of political parties to three. We believe that this change
is consistent with the constitutional principles set by the Borama and
Hargeisa Conferences. Whilst the
lessons of the unbridled multi-party system in the first 9 years of the
ill-fated union with Somalia have to be learnt, we hope that no arbitrary
restrictions on political parties will re-appear in the newly drafted
Electoral Bill. |
Waxaannu kale oo soo
dhawaynaynaa wax-ka-bedellidda iyo kabidda yar-yar, kuwaasoo inskata oo aanay
aha-yn lagama-maarmaan, haddana keenaaya wanaajin. Waxaa ka mid ah, tusaale
ahaan, tirtirida Qodobka 54aad oo dhigaya Ciqaabta Gudasha-la’aanta
Waajibaadka Muwaadinka, oo aan habooneyn waqtigan ca-sriga iyo xuquuqda
aadamiga. Waxaannu kaloo raacsanahay
tirtirida qodobada 81aad iyo
95aad, kuwaasoo hadda dhigaya xaaladaha gaarka ah ee Madaxwaynuhu awood u
leeyahay inuu kala diro labada gole. Tan kale kuma aragno wax dhibaato ah
toostoosinta luuqadeed ee qodoboda qaarkood lagu sameeyey, sida beddelka loo
soo jeediyey Qadobka 8aad (Astaan-ta Qaranka); qodobada 83aad iyo 90aad
(kuwaasoo la xidhiidha awoodda iyo waajibaadka Golaha Guurtida, oo noqonaya
iminka Qodobka 37aad iyo 43aad); qodobka 104aad (Golaha Wasiirarda, oo iminka
noqonaya Qodobka 56aad); qodobka 146 (Magacaabista iyo Xilkaqaadista Madaxda
Hay’adaha, oo noqonaya qodobka 89). |
We
also welcome some of the minor amendments, which, though not essential, are
improvements. These are, for example,
the deletion of article 54 which deals with the punishment for non-fulfilment
of the general duties of citizenship which is not in line with modern
concepts of human rights. Also we
welcome the proposed deletion of articles 81 and 95, which currently set out
the limited circumstances in which the President may dissolve the two
Houses. Furthermore, we do not see
any problems in some of the proposed textual improvements, such as the
proposed changes to articles 8 (the national emblem, now to be art.8 of the
new draft); articles 83 and 90 (relating to the powers and duties of the
House of Elders, which are to be art.37 and 43); article 104 (the Council of
Ministers, which will be art.56); and article 146 (Appointment of officers,
will be art.89). |
Waxaanu iswaydiinaynaa
xikmadda ka danbaysa beddelaadaha qaarkood, kuwaasoo, sida ay annaga noola
muuqato, aan ahayn qaar loo baahan yahay, danteenana dhibaato u keeni kara.
Kuwaas waxa ka mid ah tirtirida qodobka 12aad, kaasoo dhigaya in
Jamhuuriyaddu aqoonsan tahay, kuna dhaqmayso, sharciyadda iyo hanka caalamiga
oo ay ka mid yihiin Axdiga Qaramada Midoobay iyo Baaqa Caalamiga ah ee
Xuquuda Aadamiga (Universal Declaration of Human Rights), iyo in khilaafaadka siyaasiga ah ee
abuurma lagu xallilo dariiq nabadeed iyo wadahadal. Waxaannu kaloo fahmi la’nahay
sababta loo tirtiray qodobada 13aad ilaa 33aad iyo qodobka 58aad, kuwaasoo
dhigaya waxa loogu yeedho “directive principals”, isla markaana loogu
talogalay inay dowladda siiyaan talooyin iyo hagid dastuurka ku saldhigan. |
We question the wisdom of a number of
amendments, which, in our view are not only unnecessary, but will also be
detrimental to our long-term interests, such as the deletion of article 12
which sets out the Republic’s adherence to international law and norms,
including the UN Charter and the Universal Declaration of Human Rights, as
well as other concepts as peaceful settlement of disputes. We also do not understand why it is
thought necessary to delete articles 13 to 33 and 58, which set out what is
often described as “directive principles” and which are aimed at providing a
non-enforceable, but general formal constitutional guidance to the government |
Waxaanu ka soo
horjeednaa tirtirida qodobada 34aad ilaa 52aad, kuwa-asoo ku saabsan
xuquuqaha iyo xorriyadaha aasaasiga ah; waxaanu waliba diidannahay sida loogu
beddelay qodob kaliya oo aan kaafiyi karin waxyaalaha hadda ku cad 18kaa
qodob. Dastuurku waa dhigaalka ay sax tahay, inuu caddeeyo xuquuqaha
assaasiga ah, sidaa darteed waxay nala tahay in aanay haboonayn in qodob
kaliya lagu soo koobo caddaymahaas. Midda kale beddelaaddani ma waafaqsana
waajibaadka ay xeerarka caalamiga saareen Jamhuuriyadda, waayo waxay soo
jeedineysa in ay xuquuqda aadamiga ah hoos imanayaan sharciyadda dalka,
halkii ay la tiigsan lahayd xeerarka caalamiga ah sida hadda ku cad Qodobka
12aad ee Dastuurka. |
We oppose the proposed deletion of
articles 34 to 52 dealing with the fundamental rights and freedoms and their
replacement with an unwieldy single article which is far inferior to the
existing 18 articles in the current constitution. A constitution is the right
document to declare these fundamental rights and the single article proposed
is woefully inadequate. It also does not meet the Republic’s obligations
under international law in that it seeks to place these rights under the
current (and future) laws of the land, rather than the internationally
accepted norms which are currently endorsed explicitly in the Republic’s
Constitution under article 12. |
Waxaannu
aad uga walaacsannahay dhowr beddelaad, kuwaasoo horseedaya inay diciifiyaan
awoodda Golaha Wakiillada. Tusaale ahaan, tirtiridda Qodobka 60(2), kaasoo
hadda horjoogsanaya ku wareejinta awoodda xilka xeer-dejinta cid kasta oo ka
baxsan Baarlamaanka, iyo dhowr beddelaadood oo la xidhiidha awoodaha iyo
waajibaadka Golaha Wakiillada, gaar ahaan kuwa ku saabsan baadhista ama
xogwaraysiga qorshaha dawladda, dhowridda Miisaaniyadda, iyo baabi’nta
Guddiga Joogtada ah ee Golaha Wakiillada oo hadda xil ka saaran yahay daymada
hawsha dawladda marka aanu Baarl-amaanku fadhiyin, iyo xilliga ay yimaaddaan
arrimo kadis ah (in times of emergencies). Waxa kaloo tusaale arrintan ka ah,
tirtiridda dhowrsanaanta u gaar ah xubnaha baarlamaanka (general immunity of
members of Parliament) iyo tirtiridda awoodda Golaha Wakiillada keligood ay
hadda u leeyihiin in ay go’aan ka gaadhaan in soo jeedin kasta oo beddeleysa
Dastuurka loo baahan yahay iyo in kale. |
We are seriously concerned about the
series of amendments, which will have the effect of reducing the power of the
House of Representatives. Examples of these are the proposed deletion of
article 60(2) which currently bars the transfer of legislative powers to
anyone outside Parliament and the various changes relating to the powers and
duties of the House of Representatives, specially with regard to questioning
the government’s programme, oversight of the Budget, and the abolition of the
House’s Standing Committee which has currently oversight of governmental
activity during the parliamentary recesses, and in times of emergencies. The
removal of the general immunity of members of Parliament and the House’s
initial veto power on constitutional amendments are other examples. |
Waxaannu aad uga
walaacsannahay in beddelaadaha qaarkood ay Waaxda Fulinta (the Executive -
Xukuumadda) ka quwad weynaynayaan waaxyaha kale ee Xeerdejinta iyo Garsoorka.
Taasina waa mid ka soo horjeedda mabaadi’-da awood-qaybinta qarankeenna.
Taariikhdu waxay ina bartey khatarta ay leedahay Xukuumad awood weyn, sidaa
darteed waxaannu ka digaynaa wax allaale wixii sabab la’aan kordhinaya
awoodaha Xukuumadda Dhexe (Central Government). Arrintan waxaa tusaale u ah
soo jeedinta in la tirtiro qodobka iska hortaagaya xubnaha Baarlamaanka inay
noqdaan wasiiro ama wasiiro kuxigeen, iyo Guddiga Caddaaladda oo la hoos
keenay Xukuumaddu. |
We are seriously concerned that some
of the proposals will have the effect of increasing the power of the
Executive over the Legislature and the Judiciary, and, as such, are therefore
contrary to the principles of separation of powers. History has taught us the
dangers of an overweening Executive, and we would caution against any
unjustified increases of the powers of central government. For examples it is
proposed to remove the bar on members of parliament from being
ministers/deputy ministers and the Judicial Commission will be brought firmly
under the control of the Executive. |
Waxaannu
jecelnahay in la sii xoojiyo madaxbannaanida waaxda garsoorka, waanan cambaareyneyna
beddelaad kasta oo wax u dhimi karta mabda’an muhiimka ah. Waxaannu qabna in
ay muhiim tahay in Guddiga Caddaaladda, oo ku shuqul leh magacaabista iyo
xil-ka-qaadista Garsoorayaasha maxkamadaha hoose, iyo ku-xigeennada Xeer
Ilaaliyaha Guud (pro-curators), ay ahaato mid uu guddoomiyo, islamarkaana ay
ka mid ahaadaan Garsoorayaasha Maxkamadda Sare, ee aanay xubnaha Xukuumaddu
gacanta ku qaban. Waxaannu kaloo
aaminsanahay in dhidibka madaxbannaanida garsoorayaasha ay tahay kursi waara
(security of tenure). Waa arrin aad aannu uga walaacnay in Garsoorayaasha
Maxkamadda Sare iyo kuwa maxkamadaha kale si fudud xilka looga qaadi karo. |
We would like to see the independence
of the Judiciary strengthened further and deprecate any of the proposed changes
that might affect this important principle. We consider it important that the
Judicial Commission, which oversees the appointment and removal of judges and
procurators, should continue to be chaired by and include Supreme Court
justices and not members of the Executive. We also believe that security of
tenure is the cornerstone of the independence of judges. It is a matter of
serious concern that justices of the Supreme Court and other judges can be
removed from office so easily. |
Waxaannu soo jeedinaynaa in dhammaystirka Dastuurkan kumeelgaadhka ah si dhakhso ah loo soo gebagabeeyo, oo sida Qodobka 152aad dhigayo la qaado waqti dhow Afti dadwayne. Aftidu waxay Dastuurka siin doontaa codka dadwaynaha, waxaaney caddeyndoontaa in ummadda Somaliland ay go’aansadeen aayo-ka-talintooda iyagoo ah dal xor ah oo madaxbannaan. Waxaannu kasoo horjeednaa tirtirista qaybta Qodobka 152aad, ee shegaya in la sameeyo Guddi qabanqaabisa Aftida, waxaanan codsanaynaa in si degdeg ah loo magacaabo Guddidaas. Waxaannu kula dardaarmaynaa Guddida Qabanqaabada Aftida iyo Dawladdaba inay qaadaan olole dadwaynaha lagaga jaahil saarayo Dastuurka. Waa inaynu soo dhawaynaa oo martiqaadnaa ilaaliyeyaal caalami ah, una isticmaalnaa natiijada Aftida horumarinta qadiyadeena ictiraafka adduunwaynaha. |
We urge that the implementation of
the interim Constitution be finalised quickly, and that the referendum under
article 152 be held as soon as possible.
The referendum will put the people’s stamp of approval on the
Constitution and will attest to the will of the Somaliland people to decide
their own destiny as an independent and free nation. We oppose the deletion
of that part of article 152, which provides for the setting up of a
Referendum Commission and we ask that the Commission be appointed soon. We
urge that the Referendum Commission and the Government embark on a public
education programme to explain the Constitution to the people. We should
welcome international observers and use the outcome of the referendum as part
of our case for international recognition. |
Ugu dambayn,
waxaannu Forum ahaan isku taxallujinaynaa meelmarinta iyo kor-uqaadidda
jiritaanka iyo qaddiyadda Somaliland, waxaana aannu jecelnahay in aannu
Jamhuuriyadeenna ku aragno hab dimoqraaddinimo oo hagaagsan. Faalladayadan
iyo falanqayntan ku saabsan wax-kabeddelka Dastuurka ee lasoo jeediyey, sidaa
darteed, waxay ku salaysan tahay mowqifkaas, waxaana aannu talooyinkan si kal
iyo laab ah ugula dardaarmaynaa dhammaan ummadda Somaliland. Nuqli kan ka
faahfaahsan oo ah faalada Somaliland Forum uu ka bixiyay beddelidda iyo
kabista dastuurka ee lasoo jeediyey, waxaad ka heli kartaa warqadda hoos ku
qoran. |
Finally, we commit our Forum to the
advancement of the cause of Somali-land, and we want to see the continu-ed
development of a vibrant, healthy democracy in our Republic. Our comments on
the proposed changes to the Constitution are, therefore, made with that
objective in mind, and we wholeheartedly commend them to all Somalilanders. A
more detailed description of this summary is provided below. |
OPEN LETTER TO
THE SOMALILAND GOVERNMENT, LEGISLATURE & THE PUBLIC ON THE PROPOSALS FOR
CHANGES TO THE CONSTITUTION
1.
We are an international forum consisting of Somalilanders living in the
Diaspora who are committed, albeit from a distance, to the strengthening of the
political identity, economic viability and general prosperity of the Somaliland
nation. We are not a party political organisation, but we feel strongly about
the sovereignty of the nation, democracy, human rights and good governance.
Central to these issues is the concept of constitutionalism which is taking
root in our society and which is ultimately the best guarantee for the
long-term stability and justice in any modern society.
2.
We are proud
of the hard work that our communities have undertaken in establishing peace and
in mapping out the future of our institutions in the three main national
conferences in Buroa, Borama and Hargeisa. Both the National Charter and the
Interim Constitution testify to our communities’ commitment to democracy, the
entrenchment of human rights and the building of a state based on separation of
powers between the three branches of government, with the essential checks and
balance on the exercise of power. As
can be seen in the preamble to the Constitution, these main guiding principles
were succinctly listed in the Hargeisa Conference’s instructions to the
Constitutional Working Party who, in consolidating the various draft proposals,
were enjoined to consider the following:
a) The Islamic Sharia.
b) Conclusions from the various
consultations.
c) The separation of powers of the state
as between the legislative, the executive and the judiciary.
d) The decentralisation of the
administration of the government.
e) Guarantees of private property rights
and the protection of the free market.
f)
Veneration of
human life through the entrenchment of fundamental rights and personal
freedoms.
g) Peaceful and proper co-existence with
the states in the region and the rest of the world.
3.
All these
principles are reflected in the preamble and the 156 articles of the
constitution, and article 154 further entrenched some of them, so that no
proposed amendment, which conflicts with the following can be made:
a)
The principles
of Islamic Sharia.
b)
The
sovereignty (unity?) and territorial integrity of the country.
c)
Democratic
principles and the multi-party political system.
d)
Fundamental
rights and personal freedoms.
4.
Any proposed
changes to the interim Constitution must, therefore, be examined in the light
of these principles, and the onus is on those who are proposing changes to
justify them beyond peradventure.
5.
We understand
from the reports of the President’s recent speech on 29/8/1999, that the President
said that when the Hargeisa Conference of the Communities approved the interim
Constitution, it attached a rider stating that the Constitution had some
shortcomings and will need improvements and corrections and that the three
“councils” (Golayasha) (the two Houses
and the Council of Ministers) should therefore meet and re-consider it before
the Constitution is passed to the nation for approval. The President stated that when he suggested
to the two Houses to set up a tri-partite Commission that can study the
constitution and make proposals for any necessary changes, it was decided that
the Council of Ministers should consider the Constitution and then pass their
proposals to both Houses separately, who would debate the proposals and then
decide which provisions they would accept. The President commented that it was,
therefore, surprising to him that when the Council of Ministers’ proposals were
submitted to the House of Representatives, “few” members embarked on a heated
debate without discussing what has been deleted or added to the constitution
and alleged that, among other things, the sovereignty of Somaliland shall be
removed so as to lay the ground for the renunciation of the independence and
separate existence of Somaliland. The
President denounced these allegations as nonsense and mischievous. In this
context, and for the avoidance of doubt, we strongly recommend that any agreed
amendments should an addition to article 154 of the Constitution which makes
null and void any proposals or amendments which might affect the independence
“madax-bannaanida” of Somaliland.
6.
Clearly, the proposed changes which reduce the 156 articles of the
current constitution to 99 and which have significant implications for the
nation have, rightly or wrongly, been seen as proposals emanating from one
branch of the government, and it appears to us that the first lesson that can
be learnt from this exercise, is the setting up of a genuinely representative
Commission lead by the legislature to examine the proposals and then to report
back to Parliament. We are conscious
that the interim Constitution has to be put to the public in a referendum by
the beginning of next year, and we consider it important that the referendum is
held on time, as it will put the formal stamp of approval of the nation on this
document which succinctly declares to the whole word that Somaliland’s
sovereignty is sacrosanct and our territory is inviolable. As a matter of
principle, whilst we accept that there are some provisions of the Constitution
which could do with “fine tuning”, we do not consider it so flawed as to
necessitate it being drastically changed before it can be put to the nation for
endorsement. The work of the proposed Commission must, therefore, be completed
speedily and the emphasis should be on essential corrections (such as the
removal of the limit of three on the number of political parties), rather than
on a wholesale revision, which, for a constitution adopted only two half years
ago, is not necessary. We would also urge that, the appointed Commission should
be given clear terms of reference and that it should be seen as being
independent of government and be given a free hand in consulting as widely as
possible.
7.
We move on then to comment on the proposed changes. We found that
Government’s proposals leave just over a third of the 156 article constitution
(about 59 articles) unchanged, and roughly about 19 articles have minor or
consequential amendments made to them. The remaining articles have all been
changed, including 45 articles, which have been deleted. In our view, these
changes go beyond correcting or fine-tuning (in Somali, kabid) and are more
drastic, in their scope. We know that
under article 153 of the Constitution, proposals for changes to the
Constitution can be made by the President, having taken the advice of the
Council of Ministers, or by a third of the membership of either the two Houses,
but, we would suggest that, for the sake of continuity, compromise and
consensus, any proponent of massive constitutional changes ought to, as a
matter of practice and convention, seek wider consultation before tabling them.
Our suggestion of an independent
Commission is made, with this important principle in mind.
8.
We are pleased to note that, on the basis of our analysis of the
amendments (i.e the copy we have received), none of the articles which set out
the sovereignty, territory and sanctity of our independence (i.e. articles 1 to
7) are touched by any of the proposals for change. Indeed, as we have noted
above, no amendment of the constitution, which conflicts with the sovereignty
(unity) of Somaliland, can be tabled by anyone. In this respect, we welcome the
President’s speech on 29/8/99 on this issue. Nonetheless, we strongly recommend
that, for the avoidance of doubt, any new agreed amendments should include an
addition to article 154 which makes null and void any proposal or amendment
which might affect the independence (madax-banaanida) of Somaliland.
9.
We welcome the
proposed changes to article 11 of the constitution, which currently limits the
number of political parties to three and bars political parties that are based on regions or clans. We believe
that this change is consistent with the constitutional principles set by the
Borama and Hargeisa Conferences. The new article simply says that “Political
parties and their structure shall be determined by a law”. Limits on the number
of political parties contradict the fundamental principle in the constitution
(article 11(1) and the preamble) that there shall be a democratic and
multi-party political system. The
deletion of the ban on parties which are either based on “regions” appears to
be sensible, as well, as it would have been unworkable during the transition
period from representation based on nominations by the various communities
(beelaha) to one based on elections through political parties. Whilst the lessons of the unbridled
multi-party system in the first 9 years of the ill-fated union with Somalia
have to be learnt, we hope that no arbitrary restrictions on political parties
will re-appear in the newly drafted Electoral Bill.
10.
We also
welcome the following minor amendments, which, though not essential, are
improvements. The deletion of article 54 which deals with the punishment for
non-fulfilment of the general duties of citizenship is in line with modern
concepts of human rights, as punishments should only be carried out for non
performance of specific legal duties imposed by legislation, and not for non
fulfilment of civic responsibilities.
Bad citizenship is not, per se, synonymous with criminality and specific
laws cover conduct such as non-payment of taxes etc., which ought to be
punished by law.
11.
We also
welcome the proposed deletion of articles 81 and 95, which currently set out
the limited circumstances in which the President may dissolve the two Houses.
In a “presidential” system, like ours, in which both the President and
Parliament are to be directly elected, and which will be grounded on fairly
extensive separation of powers, this residual power of the President appears to
be incongruous.
12.
There are also
a number of very minor amendments which improve the text, but have no
significant bearing on the meaning of the articles to which they relate.
Examples are the proposed changes to articles 8 (the national emblem, now to be
art.8 of the new draft); articles 83 and 90 (relating to the powers and duties
of the House of Elders, which are to be art.37 and 43); article 104 (the
Council of Ministers, which will be art.56); and article 146 (Appointment of
officers, will be art.89). We do not
see any problems in these textual improvements.
13.
We also
believe that the House of Representatives is the main legislative body, and
whilst we decry the changes set out below, which we feel will diminish its
powers, we do endorse the three ways in which the House’s position might be
improved. Firstly, the proposed change
to article 118 (the new art.70) means that, the Speaker of the House of
Representatives shall gain his well-deserved place in the protocol of the country
and will gain joint second place with the Speaker of the House of Elders, and
after the President/Vice-President. Secondly, the changes to article 100 (the
new art.51) means that that the Representatives can reassert their wishes on
Bills rejected by the Elders by a simple majority, and not, as currently, by a
qualified two-thirds majority. This amendment will strengthen the
Representatives’ hand, and will re-emphasise their pre-eminence in the
legislation field. “Turf wars” between two Houses in a bicameral system can be
constitutionally difficult, and this will bring to an end speedily any major
differences on Bills between the two House. Thirdly, the change to article 107,
relating to the unusual security circumstances which might effect the holding
of the election of the President/Vice-President, means that the decision as to
whether the term of office of the incumbent(s) be extended, will not be left to
the House of Elders only, and the House of Representatives will be able to
participate in this important decision.
14.
We support, in
principle, the amendment to article 151(7) which relates to the laws passed by
the previous governments which are still in force in the Republic. The
Constitution currently accepts that all pre-1991 laws (which have not been
repealed) shall be remain in force unless they are in conflict with Islamic
Sharia or with the provisions of the Constitution (article 155). We know that
this was a pragmatic decision to avoid gaps in legislation before new laws are
promulgated. Unfortunately, this meant
that laws passed by the Siyad Barre regime could still be in force until they
are repealed. The amendment limits the laws which will be in force in the
Republic to those which existed before the onset of the Siyad Barre dictatorship
on 21 October 1969. We assume that the Government has worked out thoroughly the
implications of this proposed change. In particular, we would urge the
government to consider urgently all the laws or decrees which might have been
issued in relation to international agreements or conventions and with which
our Republic will still be bound under
international law.
15.
We question
the wisdom of a number of amendments, which, in our view are not only
unnecessary, but will also be detrimental to our long-term interests. For
example, it is proposed that article 12 which sets out the Republic’s adherence
to international law and norms, including the UN Charter and the Universal
Declaration of Human Rights, as well as other concepts as peaceful settlement
of disputes, respect for territorial integrity of others etc, be deleted. This
article correctly accepts the international norm of state succession in respect
of the treaties and agreements entered into by previous governments (although
this could perhaps be better worded to include a commitment to settle by
agreement or arbitration, some of the questions relating to state succession).
It is a declaratory article that is found in most modern constitutions and sets
out the minimum standards expected of
any state that is aiming to claim its well-deserved place in the international
arena.
16.
We do not
understand why it is thought necessary to delete articles 13 to 33 and 58,
which set out what is often described as “directive principles” and are aimed
at providing a non-enforceable, but general formal constitutional guidance to
the government. Although they are, in effect, a “wish list”, the fact that they
are noted in the Constitution underlines their importance to the nation, and
indeed, some of them, such education, health, and the care of the disabled and
the handicapped, are increasingly seen as “rights” (albeit, ones that can not
be always met) ranking with civil and political rights. For example, the Ethiopian Constitution considers
some of these as “economic, social and cultural” rights (art.41) and the rights
of labour (art.42). If there is a concern that these principles might be
misconstrued as importing immediate legal obligations on the Government which
clearly it cannot meet, in the present circumstances, then this should be
addressed separately as part of a grassroots dissemination of the provisions of
the Constitution, which needs to be done, in any case, prior to the referendum
next year.
17.
We oppose the
proposed deletion of articles 34 to 52 dealing with the fundamental rights and
freedoms and their replacement by an unwieldy single article which is far
inferior to the existing 18 articles in the current constitution. A
constitution is the right document to declare these fundamental rights and the
single article proposed is woefully inadequate. It also does not meet the
Republic’s obligations under international law in that it seeks to place these
rights under the current (and future) laws of the land, rather than the
internationally accepted norms which are currently endorsed explicitly in the
Republic’s constitution under article 12 (see above). The Republic already
accepts the Universal Declaration of Human Rights (see article 12 and the
recent 1997 pronouncements of the President in his meeting with Amnesty International)
and, has (again, because of article 12(1) and the general principles of state
succession) inherited from the last “Somalian” government the half hearted
accession of that government (on 24/04/91) to the International Covenant on
Civil and Political Rights. Under article 2(2) of the Covenant, states are required to “take the necessary
steps in accordance with their constitutional processes … to adopt such
legislative or other measures as may be necessary to give effect to the rights
recognised” in the Covenant. Furthermore, no derogation from some of the rights
(such as the right to life, art.6, the right not to be subjected to torture,
art.7, or to slavery, art 8 etc) is allowed, so any state laws which go
contrary to these rights, even in times of public emergency, will not be
considered valid under international law. The importance of clear
constitutional guarantees on human rights has been underlined not only by our
recent struggles against oppression, but also by the Borama Conference of the
Somaliland Communities (1993) where it was emphasised in article 8 of our
National Charter (Axdi Qarameed). Also in the Hargeisa Conference (1996/97),
the Constitutional Commission were enjoined, among other things, to give regard
to veneration of individual life through the entrenchment of fundamental rights
and freedoms. Besides the intrinsic importance of human rights guarantees to
our people, these constitutional provisions are also important for our
international standing, specially at this crucial time when we are seeking to
gain our legitimate place in the international arena. It is worth pointing out,
for example, that the EC Guidelines on Recognition of the New States in E.
Europe emphasise respect for the rule of law, democracy and human rights, and
we are not going to advance our cause by cutting back on the expressed
constitutional rights and freedoms of our citizens. A quick survey of the
constitutions of neighbouring African countries shows that none of them leave
fundamental human rights to one article and the trend is to have lengthy
articles covering all aspects of human rights.
For example, the Ethiopian Constitution has no less than 31 articles
(art.14 to 44) covering all human and democratic rights; the Eritrean
Constitution, 16 articles (art.14 to 29); the Sudanese, 15 articles (art.20 to
34); and the Ugandan Constitution, an
impressive 39 articles including the establishment of a Human Rights Commission
(art.20 – 58). The “Somalian”
Constitution of 1960 included 16 articles on rights and freedoms (art 16 – 30)
and even Siyad Barre’s contained 15 (art 20 – 34) !!!!.
18.
We are
seriously concerned about the series of amendments, which will have the effect
of reducing the power of Parliament and, specially, that of the House of Representatives,
which is, after all, as described in the article 62 of the Constitution, the
“first body of the country’s legislative”. Examples of these are as follows:
1.
The proposed
complete deletion of article 60(2) which currently bars the transfer of
legislative powers to anyone outside Parliament will not simply remove the
ambiguity inherent in this section, but if passed, would have the consequence
of legislative powers being exercised by the Executive. There should be no room
for laws passed by Executive “decree” without parliamentary prior delegated
approval and subsequent oversight.
Clearly, Parliament, under specific Acts may delegate limited powers to
the Executive or to Local Government to issue some regulations or bye-laws in
specific circumstances, but the current article 60(2), is simply a
manifestation of the principle of separation of powers and confirms the
supremacy of Parliament in the legislative field. The slight ambiguity in it
can be removed by a rewording such as : “Except
as provided in this Constitution, no person or body other than Parliament shall
have power to make provisions having the force of law in the Republic of
Somaliland except under express authority conferred by a law passed by
Parliament”.
2.
The changes in
the powers and duties of the House of Representatives (article 78 – new article
34) mean that the House will lose the following powers:
a)
The power to
refer back (with reasons) the programme of the Government after debating it is
to be removed.
b)
The power to
forward to the Government advice and recommendations on general policy and
leadership, which the House has recently done very effectively in its last
session.
c)
The power to
summon named ministers and officers, rather than, as proposed, summoning “the Government and public agencies” to
appear in front of them, presumably with the choice of who should actually
appear on behalf of the Government/public agency being left to the discretion
of the latter.
d)
The power to
“ratify governmental agreements and treaties including political, economic and
security agreements or those agreements
involving financial commitments which have not been covered in the
Budget, or which will involve the promulgation or amendment of a law”. The new art 18(4)(c) leaves to joint
sittings of the two Houses to discuss proposals to ratify international or
regional treaties, but there are other agreements (e.g. bilateral agreements
between Somaliland and a specific other country or, for that matter, between
the Government and external corporations) which do not fall within the new
art.18 and would not therefore benefit from parliamentary oversight. Agreements, which might incur expenditure
outwith the Budget, also, need parliamentary approval.
3.
The deletion
of article 79 and changes to article 80 also have implications for the House’s
oversight of financial issues. We are still going through a transitional and
difficult period, and the Hargeisa Conference, in including these partly
declaratory articles, might have had in mind the serious consequences of
unregulated printing of money or other financial imprudence. Most constitutions give parliaments the
right to approve a budget, which also carries the implication that they may
reject it or amend it. If there is concern about the House of Representatives
proposing expenditure in areas which have not been proposed by the Government,
then there could be a specific provision to address that issue. Parliament
needs to have strict oversight of the budget and the provision that all
proposed expenditure outwith the budget has to be brought to its attention is
an important element of the checks and balances in a democratic state. .
4.
The proposed
abolition of the Standing Committee of the House of Representatives, whilst
that of the House of Elders is retained, albeit with a reduced membership, will
reduce the House of Representative’s oversight of governmental activity during
the parliamentary recesses, and in times of emergencies. The Government has
recently justified this on the basis that the House of Elders has a special
role in dealing with peace and security and needs delegates that can be sent to
deal with exigencies. In the long run,
a system of select committees who specialise in various subjects might be the
answer.
5.
The
parliamentary oversight of the emergency actions of the President is also being
severely curtailed. Under article 117, the President has power to issue
emergency decrees when the House of Representatives is not in session or cannot
reach a resolution urgently and there are compelling circumstances which
endanger the security of the country and law and order. But, these emergency
decrees must be approved by the Standing Committees of the two Houses within
seven days; or if the Committees reject the decrees, the latter shall be
presented to a joint sitting of the two Houses within 45 days, who may approve
them by a simple majority. Also, as a further check, emergency decrees must be
reviewed once every six months by the two Houses whose resolutions will be
passed by a simple majority. With the
abolition of the House of Representative’s Standing Committee, the decrees
shall now be presented straight to the first sitting of Parliament who may
approve them by a simple majority, and the requirement for a parliamentary six
monthly review is being deleted. The current provisions in article 117 are
necessary measures in a democratic society where law making by presidential
decree should be very strictly controlled and monitored and there is a
mechanism for the regular review of emergency legislation so as to ensure that
such laws do not outlast the conditions that necessitated their passage. Even
the “Somalian” Constitution enjoined the President to submit any emergency
decrees to the National Assembly within 5 days, and the Assembly had to decide within
30 days to “convert” the decree into law. More importantly, if the conversion
was not done, the decree ceased to have effect ab inito (i.e. as if it never existed).
6. The proposed amendment to article 102
appears to remove the general immunity of members of Parliament (of both
Houses). Instead of reducing the current immunities and privileges of members
of Parliament, there is a good case for improving them and making it clear that
no member may be arrested or prosecuted for opinions expressed or statements
made by him at any meeting of the House or its committees or in connection with
his duties as member of Parliament.
7.
Under article
153, the House of Representatives has an enviable and exclusive power to decide
in the first instance, by a simple majority vote whether any amendment to the
Constitution (proposed by the Government, or a third of the members of either
House) is necessary, and if they deem it that it is not, then the proposal
cannot be tabled again for a period of 12 months. This important initial veto
power of the House is to be removed (see the new article 96) and the House of
Representative will then have exactly
the same power as the House of Elders in respect of constitutional amendments.
18. We
are seriously concerned that some of the proposals will have the effect of
increasing the power of the Executive over the Legislature and the Judiciary,
and, as such, are therefore contrary to the principles of separation of powers.
History has taught us the dangers of an overweening Executive, and we would
caution against any unjustified increases of the powers of central government.
Examples of some these proposals are:
1.
Article
119(5)(b) (the new article 71) which bars members of parliament from being
ministers/deputy ministers is to be deleted. The Preamble to the Constitution
and the National Charter (article 9) are both very clear about the separation
of powers in our “presidential” and bicameral system of government. It is
therefore essential that members of legislative should not be eligible to serve
in the Executive, and vice versa. After all, there is nothing stopping a Member
of Parliament or a minister from resigning and then seeking a new career.
Indeed Article 9(2) of the Charter explicitly stated that if a member of the
two Houses was appointed as a minister, he will immediately lose his seat in
the House. In our “presidential” system, the proposed backdoor introduction of
some of the elements of a “parliamentary” system is likely to increase the
power of the Executive over the Legislative through the largesse of ministerial
offices.
2.
The
composition and chairing of the independent Judicial Commission (article 131)
is also to be changed (the new art.83). It is proposed (and, according to
recent reports, this has already been implemented!!!) that the Commission will
now be chaired by the Minister of Justice (instead of the Chairman of the
Supreme Court) and that there will no longer be any members from the Supreme Court (currently two Justices and the
“Chief” Justice are members). The proposed chairing of this important
Commission, which deals with the appointment and disciplining of judges and the
procuracy, by a Minister goes counter to the expressed principle of separation
of powers. It is also highly unusual
that this Commission which is responsible for the appointment and removal of
judges will no longer include any justices of the supreme court, or for that
matter, any other judge - this is all the more strange, in the light of the
retention of the membership the Attorney General.
3.
The
responsibilities of the Judicial Commission (article 132 – the new art.84) have
also been amended slightly to indicate that they are responsible for the
“advice” on appointment or removal of judges (other than Supreme Court
justices), and the deputies of the Attorney General. The insertion of the word
“advice” suggests that someone else (the President? the Minister?) may make the
final decision. If that is the case, then this is another power which the
Executive will assume, and which,
unlike the appointment of the Supreme Court justices and the Attorney
General, will not be overseen by
Parliament.
4.
The proposed
change to the current impeachment process for ministers and deputy ministers under
article 121 (the new article 73) means that if the President is not satisfied
with the information and allegation put to him by the Attorney General in
connection with the possible impeachment of a minister/deputy minister, he can
simply instruct the Attorney General to drop the charges. The current procedure
is that, in such a situation, the President shall submit the information and
his conclusions to the House of Representatives, who will reach a decision
about the matter by a simple majority.
19.
We would like
to see the independence of the Judiciary strengthened further and deprecate any
of the proposed changes that might affect this important principle. We consider
important that the Judicial Commission, which oversees the appointment and
removal of judges and procurators, should continue to be chaired by and include
Supreme Court justices and not a member of the Executive. We are aware of a
number of countries where the Executive is represented or chairs similar
committees, but it is unheard of for such committees not to include any judges
at all. In any case, we have opted for a high degree of separation of powers in
our governmental institutions and our Judicial Commission ought to be,
therefore, independent of the Executive and their decisions must not be
overruled by the latter. We also believe that security of tenure is the
cornerstone of the independence of judges. It is a matter of serious concern
that justices of the Supreme Court and other judges can be removed from office
so easily. Judges (especially senior
ones) are normally appointed (where they are not elected) to secure positions
and are only removed either for mental or physical incapacity or misbehaviour,
or if they have reached their retirement age. Provisions setting out security of
tenure are in most constitutions and go back to the British Act of Settlement
1701 which set out that judge’s commissions were to be made quamdis se bene
gesserint (so long as they behave themselves), “but upon the address of
both Houses of Parliament it shall be
lawful to remove them” i.e., they could only be removed for misbehaviour. An
example of a modern Constitutional provision in Africa is section 98 of the
Constitution of Zambia, which sets out a retirement age for Supreme Court and
High Court judges of 65 years and notes that he or she may only be removed from
office, but after a tribunal investigation, only “for inability to perform the
functions of the office, whether arising from infirmity of body or mind,
incompetence or misbehaviour”. Even the Constitution of “Somalia” included an
article (96(3)) which made it clear that judges “shall not be removed or
transferred except in the cases specified by law”. Our Supreme Court is also
the Constitutional Court and will have to make important decisions relating to
the constitutionality of governmental action, and, in due course, may also have
to adjudicate on electoral matters. Judges ought to be able to exercise their
judicial functions without being subject to the capricious power of the
Executive. In this respect, we are
surprised at the proposal to reduce the legal experience required for
appointment to the Supreme Court (from the current requirement of 20 years to 5
years – article 130 and the new article 82), and we are concerned about the
effect that this may have on the quality of the appointees.
20.
We urge that the implementation of the
interim Constitution be finalised quickly, and that the referendum under
article 152 be held as soon as possible.
The referendum will put the people’s stamp of approval on the
Constitution and will attest to the will of the Somaliland people to decide
their own destiny as an independent and free nation. We ask that the Referendum
Commission mentioned in article 152 be appointed immediately and we, therefore,
oppose the deletion of this provision (in article 152) relating to the
Commission (the new article 95). We
urge that the Referendum Commission and the Government embark on a public
education programme to explain the Constitution to the people. We should welcome
international observers and use the outcome of the referendum as part of our
case for international recognition.
21.
Finally, we
commit our Forum to the advancement of the cause of Somaliland, and we want to
see the continued development of a vibrant, healthy democracy in our Republic.
Our comments on the proposed changes to the Constitution are, therefore, made
with that objective in mind, and we wholeheartedly commend them to all
Somalilanders.
SOMALILAND FORUM
November 1999
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