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SOMALILAND
FORUM
www.somalilandforum.com |
THE ELECTIONS BILL (XEERKA DOORASHOOYINKA)
By Ibrahim
Hashi Jama
Contents:
The Somaliland Government
published recently the Elections Bill, which will be debated in House of
Representatives at the start of the next (12th) Session in October
2000. The Bill, together with the
Political Parties Law, which was passed by the two Houses and promulgated by
the President in early August, map out the process of the transformation of the
An Electoral Commission consisting of a Chairman and four members shall be appointed by the President, subject to approval by the House of Representatives (Clause 23). The Commission shall appoint from among its members a Deputy Chairman. Public officers, members of Parliament and members of the Armed Forces are not eligible for membership of the Commission. The term of office of the members shall be five years. If a member is accused of incompetence, incapacity due to illness, impropriety (anshax-xumo) or theft of public property or corruption, then the President shall appoint an investigation panel, who shall report their findings to him. The President can then decide to dismiss the person, subject to the approval of the House of Representatives. The Commission’s headquarters shall be in the capital city and it shall have its own staff.
The range of the Commission’s duties and powers are not set out succinctly[1], but Clause 28 states that it is the responsibility of the Commission to oversee the elections and to ensure that the Election Law is implemented. The Commission shall use the following offices as its agents: the Central Elections Office, the District Elections Office[2] and the Ward[3] (polling station) Elections Office (Clauses 20 – 26). The Central Office (based in the capital city) shall consist of a chairman, a deputy chairman and three assistants[4], and the Commission staff. The Commission shall appoint in each district in the country a chairman, two scrutineers[5], a secretary and two counting officers, who will form the district elections office. It shall also appoint in each ward a chairman, a secretary and two scrutineers. The Commission has also power to terminate these appointments, and there is a provision, in an emergency, for a ward secretary or scrutineer to be replaced by the District Chairman. The appointment of all these election officers shall be made at the latest 15 days before the election, and they can only be excused from the appointments for good and valid reasons. The officers who shall have the status of public officers whilst serving, shall be paid allowances[6] and, where appropriate, daily subsistence allowance. Members of the armed forces or those organised in similar fashion[7], the chairmen of the regions and the districts and, of course, candidates for elections are not eligible for appointment as election officers. All the district and ward election officers shall have the oath of office administered to them by the Chairman of the District Court.
Clause 3 of the Bill (which
could do with clarification) gives the Electoral Commission the power to
declare after the first elections the proportion of votes cast for each
political association. The reason for
this has not been given in the Bill, but it is likely to be linked to the
provisions of the Political Parties Law[8]
which set out the system in which three of the political associations which
contest the first local government elections can be chosen as the three
political parties allowed under Article 9 of the Constitution.
The main national elections
are for the 82 seats[9]
of the House of Representatives, and the 82 seats of the House of Elders, whose
terms of office are 5 and 6 years respectively[10].
These seats (in both Houses) are to be divided among the regions and the main
towns as follows:
a)
Twelve (12) seats for each of the six regions;
and
a)
additional four (4) seats for the capital of
Hargeisa; four (4) seats for the Togdher region; and three (3) (or should it be
2) seats for (presumably the district of) Gabiley[11].
Other than the above allocation
of seats per region, and the provision in Clause 9(1) that the boundaries of
the districts will be taken into consideration, the various electoral units (or, as I prefer, constituencies) for the parliamentary
elections have not been identified clearly in the Bill. Proportional representation works better in
large constituencies, which minimise the dissipation of the votes cast for
minority parties.
|
|
Total Membership |
|
Hargeisa, the Capital City |
25 |
|
The main town in each of the other 5 regions- Borama, Burao, Berbera, Lasanod & Erigabo |
21 |
|
Category A Districts [14] |
17 |
|
Category B Districts[15] |
13 |
The allocation of seats in
both parliamentary and local elections is always a controversial issue, even in
mature democracies. The allocation of parliamentary seats in the Bill is clear
and has the advantage of certainty, but it does not allow for any revision or
oversight by an independent body. In most countries, the authority[16]
which examines and reviews electoral boundaries or the number of seats for each
parliamentary constituency or district is independent of direct governmental
control, and there is usually provision for public consultation, before the
authority makes recommendations. Of course the final decisions will still be
made by the government and the legislative, but the independent assessment on
the basis of population census, size of districts etc. is aimed at minimising
allegations of gerrymandering. With the
proliferation of new districts[17]
in the last three years, the problems of the delimitation of their boundaries
have already been raised, and it was reported recently (Jamhuuriya, 20/08/00)
that the Ministry of Interior has set the boundaries of new districts (which
are mainly in areas not covered by large towns) as 5 square kilometres until
proper local boundaries are delineated.
The conditions which
individuals have to fulfil to stand for elections to the House of
Representatives and the House of Elders are already set out in Articles 41 and
59 of the Constitution [18]
and are partially repeated unnecessarily in Clause 5(1) of the Bill. For local
elections, candidates have to be aged no less than 35 years[19]
and must be literate. Further detailed conditions are set out in Article 6 of
the Local Government Administration Law
(Law No: 8 of 1999)[20]. These are, briefly, that candidates for local
elections have to be aged 35 or more; be a property owner in the
district/region or a tax payer or a learned person[21]
who has worked for the country for a period; be educated to Secondary School
level or equivalent; able to fulfil his duties; and not being subject of a
final sentence for a criminal offence by a court within the preceding five
years.
So far as voters are
concerned, it is confirmed that they have to be Somalilanders[22],
aged no less than 18 and not serving a prison sentence. Crucially, the Bill does not set up any voter
registration system, and, as can be seen below, the onus is then on the voters
to prove at the polling station their identity and age by means of appropriate
documents or through identification by any other means (Clause 38). The rules
governing Somaliland Citizenship are not straightforward[23]. It is also important that Somaliland citizens
who seasonally graze their herds in the Somali Region of Federal Ethiopia can
exercise their right to vote within Somaliland. Furthermore, with the open
boundaries[24]
that Somaliland has, there ought to be a system that ensures that visiting
ethnic Somalis who hold the citizenship of neighbouring Ethiopia, Djibouti, and
Somalia cannot vote. In a largely
nomadic society, voter registration or compulsory identity documents[25]
present special problems, but this is an issue which has faced other similar
democracies and can be overcome. Leaving the issue of eligibility to vote to be
settled entirely at the polling station (as was done in 1960s Somalia) is not
very practical, and will have serious consequences for the conduct and peace of
the elections. The 1994 South Africa
elections were conducted without a voter registration, but there was a wide use
of identity documents. It has been rumoured that identity documents will be
issued in Somaliland, but the government has made no formal announcements.
Each voter is entitled to only one vote which
is not transferable. All elections will
be by secret ballot, and each voter will cast his/her vote at the district in
which he resides and where the election is being held[26]. Understandably, there is no provision for
votes to be cast by Somalilanders abroad as the logistical problems posed by
such votes are beyond a state which has no network of legations abroad.
The electoral system shall
be based on proportional representation in multi-member constituencies (or
districts in local elections) with votes cast for closed lists[27]
of candidates. This system or its
variations is very widely used throughout Europe and world-wide[28]. For parliamentary elections, each of the
three parties[29]
allowed under Article 9(2) the Constitution shall present a list of candidates
for each constituency. The list must contain no less than twice and no more
three times the number of the seats for that constituency/district. Where there
is only one list submitted for an election at a constituency or a district,
then there will be no elections and the seats will be allocated according to
the candidates’ position in the list (Clause 9).
Contested seats for each constituency (or district) shall be allocated on the basis of “quotients” and “remainders” (Clause 9). This system, which was used at the last democratic Somali Republic elections in 1968[30] was known by Somalis as “koshun” (quotient), and although it is the simplest of the quota systems, it did create a lot of confusion among the electorate. Briefly, it is known as the “Hare Quota”[31], and is arrived at dividing the total number of votes cast by the number of seats. The quotient, for example for a constituency with 5 seats and 50,000 votes cast will be 10,000. Any party, whose list attracts votes equal to or more than the quotient of 10,000 votes, will be assured a seat. The seats are then allocated through “Largest Remainder System”, which means that a seat is allocated for each 10,000, but the remaining seats are allocated on the basis of the largest remaining votes after the allocation of the full quotients. When allocating the final seat, if two parties have the same total “remainder”, they shall draw lots for that seat (Clause 53(1)(h)). The following is an illustration of the system:
(Qaabka
u Qaybinta Cod-bixiyaasha iyo Hadaaga – Qodobka 9(3))
Party
|
Votes |
1st Seat |
2nd Seat |
3rd Seat |
4th Seat |
5th Seat |
Total |
|
X |
21,000 |
21,000 (1) |
11,000 |
11,000 |
11,000(4) |
1,000 |
2 Seats |
|
Y |
17,000 |
17,000 |
17,000(2) |
7,000 |
7,000 |
7,000(5) |
2 Seats |
|
Z |
12,000 |
12,000 |
12,000 |
12,000(3) |
2,000 |
2,000 |
1 Seat |
|
Total |
50,000 |
|
|
|
|
|
5 Seats |
The first seat goes to Party
X, which received total votes that exceeded the quotient and are the largest in
number. The second seat goes to Party Y, who similarly now have the largest
vote, which also exceeds the quotient. The third goes to Party Z, but the
fourth goes to Party X. The fifth is decided on the basis of the largest
remainder which, this time, is Party Y.
If none of the Party Lists
attract enough votes to reach the “quotient”, then the seats will be
distributed to the lists with the highest number of votes cast for them (Clause
9(4)). This is likely to happen in the
first local elections when there is no limit on the number of political parties
that can participate in the elections, but is less likely to happen afterwards.
The quotient and largest
remainders formula proposed for Somaliland is one of the simplest of the quota
systems[32],
and more importantly, favours smaller parties, which, in a democracy limited to
three parties by law, ought to sustain the weakest of the three parties. But this is also a disadvantage in that a
party with a relatively small total vote could then end up with seats[33],
since no minimum threshold[34]
of votes for gaining seats is set in the Bill. Many Somalilanders may also be
concerned about the re-introduction of the “Koshun”[35]
and the Bill could benefit from a schedule which gives examples of the various
permutations, specially as it is already known that, except for the first local
elections, only three political parties will be contesting elections.
Although all the procedures
in this Bill apply to presidential elections and to referendums (see Clause 60),
the electoral system for presidential elections will be different. Article 83
of the Constitution lays down that the President and Vice-President will be
elected directly in a general election on the basis of a (closed) “List
System”, with the two candidates in the list receiving the highest votes
winning outright. This is, in effect, a
“first past the post” system and the significance of the list is that
the President and the Vice-President will be elected at the same time and on
the same “slate”. Unless a separate law
or regulation is going to be issued to fill in the details of presidential
elections, this Bill needs to be amended to include provisions addressing the
submission of lists, number of proposers, deposits, and other procedures which
are unique to the presidential elections.
As far as referendums are concerned, issues such as the circumstances
which justify their calling, the formulation of the referendums questions,
campaigning, etc are better dealt with in a separate law[36].
The Central Committee (or the appropriate department) of each registered party shall submit the list of candidates for each district or constituency in which the party is contesting an election. The clear name (3 names, or, where two or more candidates have the same names, nicknames or fourth names), place and year of birth of each candidate, should be noted in the list (Clause 10). The list must contain a total number of candidates which is not less than twice and no more three times the number of the seats for that constituency or district (Clause 9). Four copies of the list officially stamped by the political party, and including the declarations of each candidate (as to their eligibility) must be submitted to the Electoral Commission. The position of candidates in the list determines their precedence in terms of allocation of seats. In parliamentary elections, a person may be included in more than one list, and he will choose which seat to accept if he happens to be elected to more than one seat (Clause 5(2)). Any arguments within each political party about the lists and their submission shall be settled by the central committee of each political party (Clause 10(4)). The emblem or mark of each political party’s list must not resemble that of another party and emblems must not include the flags of any nation, nor should they signify tribal or religious denominations (Clause 11).
On finalisation of each list, it is essential that the list be proposed and endorsed, in the presence of the Election Commission or its representatives, by the signatures of a set number of voters. The number of voters required for such endorsement is follows (Clause 12):
1. Parliamentary Elections: 500
2. Local Elections [37]– Districts A: 600 - 800
Districts B: 400 - 600
Districts C&D: 200 – 300
The signatories must be persons who are eligible to vote in the constituency/district, but the list will not voided by the inclusion of a signatory who is not so eligible (Clause 12(5)). The non-refundable deposits are 100,000 SL Shillings for parliamentary elections and 50,000 for local elections.
The List must then be submitted formally to the Electoral Commission or its designated agent 45 days before Election Day. There is a provision for this period to be extended, but no circumstances justifying this extension are explained (Clause 14). If the list is incomplete or unsatisfactory, the Commission will return it to the political party, which will be entitled to appeal to the Supreme Court (if necessary, by telegram[38]) within seven days. The Court shall reach a decision about the matter within 14 days. The Commission and its district agents shall then prepare the lists of candidates for each district and the notices about the election, which should be displayed prominently 30 days before the elections in notice boards, local authority offices, public places etc and shall be broadcast in loudspeakers or, where available, radio.
Election meetings and demonstrations shall begin as soon as the notices are published and must end 48 hours before the Election Day (Clause 16). The organisers of any such meetings or demonstrations must inform the Chairman of the District and the base (presumably, the police station) 48 hours before any such meeting or demonstration. The Chairman of the District Council may refuse permission for such an event on the basis of its likely effect on health, public morals or the public order; or order that the events be held at a specified time or place. A maximum of two meetings/demonstrations per day can be held in any town or village. Posters and leaflets must also be cleared by the Chairman of the District Council and cannot be displayed at mosques. No weapons or armed forces uniforms are allowed in meetings or demonstrations. Some of these restrictions are draconian and arguably run counter to Articles 22 (political, economic, social and electoral rights), 23 (freedom of Movement and Association) and 32 (freedom of public demonstration, expression of opinion etc) of the Constitution. The maintenance of public order during election campaigns is crucial for the exercise of the democratic right to vote, but the police have ample powers under the Public Order Law and the Penal Code[39] to deal with any disturbances. The proposed sweeping powers given to the Chairman of the District, who, in some situations might also be contesting elections, need to be re-examined. For example, parties could be obliged to liaise with the police (and the other parties) about public demonstrations or rallies so as to avoid such events taking place at the same time or place.
Political parties which are
contesting seats have a right[40]
to appoint accredited agents (and substitutes) as observers at all polling
stations and at the district and central offices of the Electoral Commission.
These agents have the right to be present during the voting and the count, and
shall make any relevant comments, which shall be recorded. The names of the
agents must be submitted to the Election Commission ten days before the
election date, and the Commission shall issue them with the appropriate written
authority to observe the election. Although administrative arrangements can be
made for the presence of international and national accredited observers at
elections, the addition of clauses setting out their role and status would give
them statutory backing. Emerging
democracies invite such observers to verify that elections are conducted fairly
and freely.
For local elections, each
district shall be acknowledged as being the electoral district, and shall be
sub-divided into wards (waax) with polling stations[41]
(Goobta Dorashada) where the voting for either or both local and parliamentary
elections will be held. The Election
Commission, in consultation with the Ministry of Interior and the Chairmen of
the Regional and District Councils, shall form the requisite polling stations,
at least 40 days before any election is held. For parliamentary elections, the
country shall be divided into constituencies which take note of the boundaries
of the districts and wards with polling stations (Clause 8).
The Bill sets out in detail
the equipment required for each polling station and district office, which the Electoral
Commission must organise and ensure is available on time and at the right
place. For example, the list for each
polling station covers a copy of the Elections Law; a sealed unit containing
the stamp of the polling station and the inks; a sealed unit containing the
ballot papers; ballot boxes; indelible ink; various forms; envelopes etc.[42]
(Clause 29). All the materials needed for the elections must be at the polling
stations no later than 6.00 a.m. of the day prior to the elections. As an indication of the details of the
procedures at the polling stations, I list below the various relevant clauses:
Clause 29 – Equipment for
the election offices.
Clause 31[43]-
Ballot papers.
Clause 32- Deals with voting
booths and position of the ballot boxes.
Clause 33- Polling station
notices.
Clause 34 - Distribution of
materials for polling stations
Clauses 35 & 36- The
duties and powers of the polling station Chairman (or Presiding Officer).
Clause 37 - Restrictions on
entry to polling stations.
A person must prove his
identity and age before he is given an officially stamped ballot paper[44]
(Clauses 39 & 40) which he will mark appropriately in a polling booth and
then put it into the ballot box.. The
polling officers must ensure that the person has not voted before by checking
his left arm for any ink[45]
and must consider any documentation proffered or any other evidence that can
attest to the person’s eligibility to vote. This would seem to allow for
identification to be confirmed by kinsmen or persons in authority in the
locality. The observers of the political parties will also be able to comment.
As pointed out above, a voter registration system would avoid such problems,
although even then, the question of proving that the person seeking to vote is
the same as the registered voter will still arise. When a person casts his
vote, his left hand shall be marked with indelible ink[46]
and the polling station Chairman shall check that the mark has been properly
applied. The voting shall be concluded in one day from 7.00 a.m. to 6.00 p.m.,
but if there are still prospective voters queuing outside, the polling station
at the closing time, they shall be allowed to vote[47].
The Bill does not create any
criminal offences relating to elections. It is possible that other laws may
cover some of the crimes relating to elections - for example, Chapter IV
(Article 383 –392) of the Penal Code deals with offences of impersonation, in
general[48],
but the Bill could be strengthened to include offences which are particular to
elections. An illustration of these
offences can be seen in the new South African Electoral Act 1999[49],
which makes illegal compelling others to vote or attend election meetings;
interfering with the independence and impartiality of electoral officers; preventing
candidates or observers from gaining reasonable access to voters;
impersonation; making false statements to electoral officers; publishing false
information to disrupt elections; printing or supplying unauthorised election
materials; removal or destruction of election materials etc. Another electoral law, which is remarkably
similar to the Somaliland Bill is the Palestinian Elections Law[50],
and again this contains offences against the freedom of electors; bribery;
voting without qualification and offences relating to election materials etc
(articles 95 – 101).
At the closure of the polling station, the polling officers shall proceed immediately to confirm the total number of ballot papers issued, and shall seal in the envelopes provided the unused ballot papers and any spoilt ones. Briefly, the procedure[51] for the count is that the scrutineer shall pass two ballot papers at a time from the box to the Chairman who shall read out the list the vote is cast for, and pass them on to the second scrutineer. Each ballot paper will then be shown to the party agents, and the secretary shall enter the vote in the appropriate part of a counting (tabulation) form. The counted ballot paper is then placed in another box. At the end of the count, the Chairman shall note in the appropriate forms, the total ballot papers, the number of spoilt ones and the number of any “contested” papers; and shall place each of them in separate containers, which are already labelled for these purposes. The counting of parliamentary votes will precede that of local councils if the elections are held at the same time. The Chairman shall announce the outcome of the count. The envelopes and boxes are then sealed and the forms are signed by the Chairman, one of the scrutineers and the party agents.
The Bill also sets out the criteria for deciding which ballot papers are null and void or spoilt (Clause 46). The former are those which are different from the official ones or were not stamped by the polling officers before they were put in the ballot box, and the latter are those which contain unusual markings or writing or do not clearly indicate the list of candidates which they support. If the decision about a void or spoilt ballot paper is contested at the polling station, then the matter will be placed in the appropriate envelope and a final decision will be made by the District Electoral Office.
The polling station Chairman, accompanied by at least one of the other officers and the police shall take promptly all the records, forms, enveloped, boxes, etc. to the District Electoral Office and the latter shall ensure that everything is still properly sealed, and shall confirm the transfer of the materials (Clause 48). As an additional safeguard, the polling station Chairman shall ensure that he passes a copy of the records (and the remaining election materials) directly to the district agent of the national Election Commission[52].
The District Electoral Office shall open the sealed envelopes and boxes in the presence of the party agents, and shall count and add up all the ballot papers from the various polling stations; confirm the total spoilt or void ballot papers; reach final decisions on any contested ballot papers and declare provisionally the total votes cast for each list of candidates. The parliamentary votes will be counted before the local elections (Clause 53). The seats will then be allocated on the basis of quotient and remainders[53] as set out in Clause 9(3). When allocating the final seat, if two parties have the same total “remainder”, they shall draw lots for that seat (Clause 53(1)(h)). The outcome of the election will then declared publicly and posted on the notice board of the District Electoral Office and the details and supporting documents (including any complaints) will be passed on to the Central Electoral Office. In local elections, the Chairman of the Regional Court is given the power to confirm the results, and to adjudicate on any complaints which have been forwarded to him within 10 days of the declaration of the election results[54]. In parliamentary elections, a copy of the results of each constituency shall be lodged with the Supreme Court.
The Central Electoral Office will then check in front of the party agents that all the materials and records returned to it are properly sealed and must check that all the returns are submitted for all the districts. The Chairman of the Central Office (i.e the national Returning Officer) shall reach a final decision on any outstanding complaints, confirm the spoilt and null and void ballots, and having satisfied himself of all the procedures, pronounce on the results of the election. The Bill does not state it, but presumably any suits relating to the final decisions of the Central Office, and specially in connection with the parliamentary or presidential elections, may be taken to the Supreme Court, as the Constitutional Court. It is incongruous that the Regional Court is given express powers under Clause 57 in respect of local elections, with a proviso that such suits be submitted within 10 days of the declaration of results, but no similar provision is made for national elections. The Supreme Court, as the Constitutional Court[55] does have jurisdiction in this matter, any way, but an express provision in the Bill will remove any doubt and might even set the time limits and procedures for such suits. The UNDOS report on the Somaliland Judiciary[56] confirmed that as at 1999, the Supreme Court has not heard any constitutional cases, although the recent constitutional disputes[57] between the President and the House of Representatives might be the first such cases to be dealt by the Court. The issue of the Court’s jurisdiction on electoral matters is a matter of historical concern in that the Somalia(n) Supreme Court ruled, contrary to its previous decisions, that many electoral petitions relating to the last free elections in 1968 fell outside its jurisdiction[58].
The choice of an electoral system for any emerging democracy is made on the basis of many factors, including previous systems (often handed down by former colonial master), political upheavals, the desire to address issues of representation of all groups etc. Proportional representation should contribute to the formula of power-sharing which the Somaliland community values, but the details of the current Bill owe a lot to the electoral system introduced in Somalia before the 1968 elections[59], with the marked difference that there is now a constitutional limit of three on the number of political parties that can contest the first parliamentary elections and all local elections, bar the first one[60]. It is unfortunate that the Bill reintroduces the misunderstood and much maligned 1968 Quotient System, but, on the whole, there are no serious flaws in this system, and it is one of the simplest of the proportional representation systems and, with some civic education, it should be understood by the public. It favours smaller parties and should allow wider representation than first past the post election systems. How well this system works will depend on the formation and composition of the three political parties, and the inevitable negotiations of the Somaliland communities in relation to the lists put up by these “national” parties.
So far as the provisions of the Bill are concerned, some of the possible additions are:
1)
Limits on expenditure on campaigns, which, if can be
implemented, will be welcomed by ordinary Somalilanders.
2)
The rights of accredited national and international
observers.
3)
The offences which relate to elections and voting.
4)
The procedures for appeals to the Supreme Court
against the decisions of the national electoral office (and the Electoral
Commission), and against the decisions of the Regional Courts, which might well
leapfrog the Appeal Courts, and go straight to the Supreme Court to cut down
the period such litigation might take.
So far as possible
improvements are concerned, the following areas could be re-examined:
1) The Bill should make it clear that the Electoral Commission is “independent and subject only to the Constitution and the law”, and that it shall exercise its powers and duties without fear or favour. To underline this independence, the members of the Commission can be nominated by a small committee consisting of an equal number of the cabinet and the two Houses, and the nominations confirmed by the House of Representatives.
2) The duties[61] of the Electoral Commission should be more clearly laid down and ought to include voter education and power to make recommendations on changes to the voting systems and allocation of seats to constituencies and districts.
3) The various electoral constituencies for the parliamentary elections and the number of seats in each constituency should be clearly set out. As parliamentary constituencies would, in some cases, cover more than one district, this also may involve the creation of constituency electoral offices, whose boundaries may or may not coincide with those of district electoral offices.
4) On election meetings and rallies, the emphasis in the Bill should be on the rights of parties to campaign freely, without any hindrances, and the public order issues should be left to the police and not the district authorities.
5)
The responsibilities of political parties and the
media can be set out more clearly in a code[62]
or regulations to be issued by the Electoral Commission and covering
campaigning, posters, election leaflets, respect for the rights of others, use
of the media etc.
6)
The detailed arrangements for the presidential
elections ought to be added to this Bill, unless a separate law will be
covering such elections.
7)
The conduct of referendums is best dealt with in a
separate law.
8)
If cost considerations can be overcome, the use of
infrared machines in polling stations should be encouraged.
©
Ibrahim H Jama
October
2000
[1] See below (footnote 61) for a suggested comprehensive list of duties.
[2] If, as argued below, parliamentary constituencies would, in some cases, cover more than one district, the question arises as to whether there ought to be also constituency electoral offices, which may or may not coincide with district electoral offices.
[3] This is referred to as “Waax” in Somali, and will be more significant if and when the registration of electors is undertaken in the future. As the Bill does not set up a registration system, the ward electoral office is now the same as the “polling station” electoral office.
[4] Clause 23 is not very clear, but it is submitted these officers are the Electoral Commissioners whose appointment is dealt with in the same Clause.
[5] In line with Somaliland custom, the older of the two srutineers shall act as deputy chairman.
[6] This will be halved if the appointed officer is already a public official. Subsistence allowance is payable to all officers who are serving away from their homes.
[7] This probably refers to the police and the prisons services.
[8] See Article 3 of the Political Parties Law. That Law sets up a separate Commission which oversees the registration of political associations, and the winnowing of their number to three after the first local elections throughout the country. See also footnote 29 below.
[9] See Articles 40 and 60(1) of the Constitution for the total membership of the two Houses.
[10] See Articles 42(1) and 58(2) of the Constitution. This is unnecessarily repeated in Article 2A of the Bill.
[11] It is not clear why four additional seats are for a region, and not the main city of that region, whilst the other three (or two) additional seats are for a specific district. The additional seats are 10, in any case, and there appears to be an error in this allocation, which adds up to 11.
[12] See Article 111(7) of the Constitution., which is repeated again in Clause 2A of the Bill. Incidentally the term of office of Regional Councils is also 5 years.
[13] Law No:8 of 1999.
[14] The total number of districts have now gone up to 33, but in 1993, when the total districts was only 19, including the 6 “county” towns (i.e. regional seats) which were designated as Category A districts, the remaining districts were categorised as follows: Gabiley, Seyla, Odweyne, Buhodle,, El Afweyn and Badan were Category B, and Baki, Lughaye, Sheikh, Ainabo,Hudun,Taleh and Bali Gubadle were Category C – see Article 6 of the Law on the Structure of the Ministry of Interior and the Administration of the Regions & the Districts 1993.
[15] See 6 above.
[16] Usually called Boundaries Commissions, but in a small country, like Somaliland, there is nothing wrong with giving that responsibility to the Electoral Commission. An example of this is the Belize Electoral Commission which, when called upon can act as a Delimitation Commission (s.19 of the Representation of the People Ordinance). Also, in the UK, the new Electoral Commission will now deal with not only elections, but also registrations of political parties and the functions which were previously carried out by the Parliamentary and Local Government Boundary Commissions – see the Political Parties, Elections and Referendums Act 2000.
[17] It should be noted that the formation of districts involves political. social and economic considerations, which are wider than electoral issues, and that is a matter which is often addressed through local government re-organisation that takes note of the wishes of local populations affected by the changes.
[18] These are essentially that a person must be a Muslim and a citizen of not less 35 years old (45 for the House of Elders); able to fulfil his duties; educated to, at least, secondary school level or equivalent; not subject of a final sentence for a criminal offence by a court within the preceding five years; have appropriate character and behaviour; and in the case of the House of Elders, must be a person who has a good knowledge of the religion or an elder who is versed in the traditions.
[19] The copy of the Bill actually says 25, but that is believed to be an error as it refers also to House of Representatives.
[20] Incidentally, if the proposals in the Local Government Administration Law (No 8 of 1999) are retained after the first direct local elections, the Mayors (Duqa) of districts (or towns) will be elected by the Councils, but, as confirmed in Article 111(5) of the Constitution, the Chairmen of the regions shall be appointed by the Central Government. However, there is a provision in the law (Article 8(a)) that the Central Government nominee must be from among the members of the Regional Council, and the Council shall endorse the nomination by a simple majority. This will strengthen the democracy in the regions, but it is not clear whether this provision has remained in the final law.
[21] The Somali phrase is “aqoonyahan” which means an intellectual or a learned person. As the educational minimum qualifications are secondary school or equivalent, this must mean that persons qualifying under this rubric must be educated to a higher level.
[22] See Article 22(2) of the Constitution which states that all citizens, who fulfil the conditions laid by law, are entitled to be elected or to vote.
[23] See Article 4 of the Constitution and Article 1 of the Somaliland Citizenship Law 1996. Citizenship is based on jus sanguinis (descent) and not jus soli (place of birth), and is linked to patriality i.e descent from a person who was resident in Somaliland on 26 June 1960 or before.
[24] This may pose particular problems in the districts close to the boundaries.
[25] Somalilanders who grew up in 1950s and 60s look back with justified pride to the era in Somaliland when there was no need for them to own identity documents, which, in contrast, were compulsory in (Italian) Somalia, and became, sadly, a requirement for anyone who wanted to deal with officialdom.
[26] See Clauses 5 and 4 of the Bill.
[27] Closed lists are used in Israel, Portugal, Spain and Germany, and the voters only select a party. Open lists in which voters can express preferences within each list are used in Norway, Finland, the Netherlands and Italy.
[28] Some 67 out of 211 countries use this system or its variations, according to the Inter-Parliamentary Union (1993) (See Norris P(2000) Ballots Not Bullets: Testing Consociational Theories of Ethnic Conflict, Electoral Systems and Democratization, Harvard University Paper). Proportional representation systems such as the Alternative Vote System (ATV), the Single Transferable Vote (STV) and the Additional Member System (AMS) are all much more complicated than the system proposed for Somaliland. For a recent practical analysis of the pros and cons of the various systems, see Voting Systems: The Jenkins Report, House of Commons Research Paper 98/112 (10/12/1998). For a more detailed analysis with a particular reference to “divided societies”, see Reily B, and Reynolds A (2000) Electoral Systems and Conflict in Divided Societies, the National Academy Press (available at http://www.nap.edu/openbook/).
[29] See the Political Parties Act, for how the three political parties will be chosen. Briefly, following the Nigerian example, all associations/parties which meet the criteria in the law shall be registered temporarily by the Political Parties Commission (PPC) and shall be allowed to participate on the first local government elections. The three parties which obtain 20% of the votes will be accepted by the PPC as being the national parties.
[30] The system was introduced by none other than the current President of the Somaliland Republic, who was then the Prime Minister of the ill-fated union.
[31] The Hare Quota is apparently used in Denmark and Costa Rica, and with other systems, in Taiwan, Ukraine and Lithuania.
[32] Some of the variations are the Hagenbach-Bischoff Quota which adds 1 to the seat numbers; the Droop, adding 1 after the division (used in South Africa, Check Republic and Greece); the Imperiali, which adds a 2 to the seat numbers; the d’Hondt, which uses numbers 1,2,3 etc as divisors and so on, and is the most widely used (e.g. Poland, Romania, Spain & Israel).
[33] That is why the “Highest Average System” (the D’ Hondt version) is sometimes used so that parties with the highest average vote after each stage of the seat allocation process is given a seat, rather than the party with the next highest vote – see Mackie T and Rose R (1992) International Almanac of Electoral History (3rd edition).
[34] For example, some of the thresholds set range between 5% (Lithuania) to 7% (Poland) of the total votes before a party can be entitled to share in the allocation of seats.
[35] I still remember working at a polling station south west of Borama in the 1968 elections, and the utter cynicism that the ordinary people had for the “Quotient” system. Parliament would be well advised to change its name and the Electoral Commission ought to undertake a public education programme on how it works, before any elections are held.
[36] The Somaliland Government has already announced that a referendum on the interim Constitution will be held shortly – see footnote 42 below.
[37] It is not clear, but these district categories are similar to those in Article 6 of the Law on the Structure of the Ministry of Interior And the Administration of the Regions & District 1993 (see footnote 6 above) although the latter does not include a category D.
[38] Or, presumably, by fax.
[39] Leaving aside the Public Order Law, Part V of the Penal Code (articles 320-333) deals with crimes against the public order, and articles 505 to 521 deal with contraventions relating to public order.
[40] Clause 27.
[41] It was reported that there will be at least 600 polling stations in the forthcoming referendum on the Constitution (Jamhuuriya, 20/08/00). It is likely that more than that number of polling stations will be needed for local and parliamentary elections. As a comparison, the October 2000 local elections held in Kosovo by the UN, involved 1,464 polling stations for total registered voters of only 901,000 in 30 municipal districts with 920 seats (Source: UNMIK).
[42] Missing from this list, presumably because of cost implications, is portable infra red machines for each polling station to aid the checking of voters’ left hands for telltale signs of ink before they are handed ballot papers. These machines are nowadays commonly used in stores and clubs.
[43] There does not appear to be a Clause 30 in this early draft Bill.
[44] Incidentally, the Bill makes no provision for postal or proxy votes. But if a person is unable, because of his physical condition, to cast a ballot, the Chairman of the polling station may allow him to be assisted by another person.
[45] See note 42 above – an infra red machine will make this checking easier.
[46] In the 1960s elections, there was anecdotal evidence that some people spent considerable time and effort in wiping the ink.
[47] Article 41 of the Bill - presumably, this means that no one who arrives at the queue after the closing time will be allowed to vote, otherwise the polling will continue all evening!!
[48] Article 383 deals with impersonating someone else; article 384, with false certification about identity and article 385 with false statements as to identity.
[49] See sections Chapter 7, sections 87 – 94 of the Act.
[50] Law No: 15 of 1995
[51] This is set out in Clauses 44 to 47 of the Bill.
[52] Clause 47(2).
[53] See above.
[54] Clause 57.
[55] See article 101 of the Constitution of the Republic of Somaliland and the 1993 Judiciary Law.
[56] UNDOS (1999) Assessment of the Judiciary System of Somaliland, UNDOS, Nairobi.
[57] These related primarily to two issues – firstly, whether the Government ought to present its programme to the House regularly, as argued by the House, and whether the President has power to enter into a commercial agreement with an international Petroleum company without the endorsement of the House.
[58] Lewis, I (1980) A Modern History of Somalia, Longman, London, at page 205.
[59] The Somalia(n) 1968 elections were contested by no less than 62 parties which fielded 1,002 candidates for only 123 parliamentary seats (Lewis I. (1980) op. cit, at page 204).
[60] See the Political Parties Law.
[61] The functions of the Commission could include, for example, managing elections and referendums; ensuring that elections are free and fair; promoting conditions conducive to free and fair elections;
promoting knowledge of sound and democratic electoral processes; working on proper systems of identifying eligible voters ; establishing and maintaining liaison and co-operation with parties; promoting research into electoral matters; reviewing electoral legislation and proposed electoral legislation, make recommendations; promoting voter education; demarcating electoral wards in the districts; making recommendations on the allocation of seats to constituencies and districts; declaring the results of all elections; and adjudicating on disputes which may arise from the organisation, administration or conducting of elections and which are of an administrative nature.
[62] A good example is Schedule 2 of the South African Electoral Act 1999.