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 SOMALILAND ADMINISTRATIVE LAW: AN OVERVIEW

(Updated April 2016)

THE STRUCTURE OF THE CENTRAL GOVERNMENT (see also Somaliland Government page)

On 8 February 2016, the overarching law on the structure of the Somaliland Central Government and Central Public Bodies came into force. The law which is now titled (in Parliamentary amendment) the Law on the Delineation of the Organisation of the Government and of the Independent Public Bodies  - Law No. 71/2015 (in Somali, Xeerka kala Xadaynta Xukuummada iyo Hay’adaha Madaxa Banaan - Xeer Lr. 71/2015 - pdf copy with the Arrangements of the Articles in both Somali & English added ) consists of 107 Articles grouped into 10 Parts. No full translation of the Law is currently avialable, but I set below the translation of the Arrangements of the Articles.

Presidential Decree: Law coming into force Preamble   PART ONE: GENERAL PRINCIPLES Article 1 Title of the Law Article 2 Application of the Law Article 3 Definitions Article 4 Objects of the Law Article 5 The principles of the Law Article 6 Term of office of government Article 7 Seals Article 8 Interpretation of the laws and official documents Article 9 Special festival days Article 10 Counting of periods Article 11 Measurements   PART TWO: THE GOVERNMENT Article 12 The government Article 13 The President Article 14 Power to issue orders and proclamations Article 15 Powers of appointment Article 16 Appointment of members of the Council of Ministers Article 17 Interim appointments Article 18 Power to delineate the various functions of the government Article 19 Powers of the Vice President Article 20 The Council of Ministers Article 21 The Ministers Article 22 Functions, duties and powers of Ministers Article 23 Powers and duties of Ministers of State Article 24 Functions and duties or Vice Ministers Article 25 Functions and duties of Director Generals Article 26 Objects of Ministries Article 27 Functions and duties of the Ministry of the presidency Article 28 Ministry of Agriculture Article 29 Ministry of Internal Affairs Article 30 Ministry of Finance Article 31 Ministry for the Livestock Care Article 32 Ministry of Energy and Minerals Article 33 Ministry of Water Article 34 Ministry of Public Works, Housing and Transport Article 35 Ministry of Commerce Article 36 Ministry of Industry Article 37 Ministry of Health Article 38 Ministry of Education and Higher Learning Article 39 Ministry of Information, Culture and Guidance Article 40 Ministry of Foreign Affairs and International Cooperation Article 41 Ministry of Youth, Sports and Tourism Article 42 Ministry of Posts and Telecommunications Article 43 Ministry of Environment and Promotion of Rural Communities Article 44 Ministry of Defence Article 45 Ministry of Labour and Social Affairs Article 46 Ministry of Justice Article 47 Ministry of the Relations of the (State) Councils, Research and Technology Article 48 Ministry of Fisheries Article 49 Ministry of National Planning and Development Article 50 Ministry of Aviation and Airspace Article 51 Ministry of Religion and Endowments Article 52 Ministry of Resettlement

PART THREE: STRUCTURE OF THE MINISTRIES Article 53 Structure of the ministries Article 54 The office of the Minister Article 55 The Director General Article 56 Establishment of regional offices Article 57 Management of regional offices Article 58 Inspection of regional offices Article 59 Divisions and staff of regional offices Article 60 Functions of regional offices Article 61 Functions and duties of regional coordinators Article 62 Inspection and review of the coordinators’ decisions Article 63 Governmental public bodies Article 64 Establishment law Article 65 Independence of  public bodies PART FOUR: STRUCTURE OF PUBLIC BODIES Article 66 Structure of public bodies Article 67 Objects of public bodies Article 68 Powers of public bodies Article 69 Functions of public bodies Article 70 Finance and accounting procedures Article 71 Utilisation of the budget of a public body Article 72 Financial Outturn Article 73 Statement of Accounts Article 74 Loans Article 75 Decisions of public bodies Article 76 Reports PART FIVE: AGENCIES Article 77 Agencies Article 78 Functions and duties of agencies Article 79 Functions and duties of managers Article 80 Functions of deputy managers PART SIX: GOVERNMENTAL COMPANIES AND PROJECTS Article 81 Companies owned or part owned by the Government Article 82 Independent factories and projects PART SEVEN: ADMINISTRATIVE RELATIONSHIP OF THE MINISTRIES AND PUBLIC BODIES AND AGENCIES Article 83 Administrative relationship of the Ministries and public bodies and agencies Article 84 Provision of information Article 85 Offences and punishment Article 86 Resolution of disputes between public bodies and the Government PART EIGHT: CODE OF CONDUCT AND MATTERS WHICH PUBLIC BODIES ARE FORBIDDEN Article 87 Code of conduct for governmental officers Article 88 Matters which are forbidden in respect of the Heads of public bodies Article 89 Integrity of officials Article 90 Declaration and disclosure of ownership and responsibility Article 91 Governmental delegates Article 92 Power to administer oaths and subpoena power Article 93 Delegation of powers Article 95 Acting capacity Article 96 Governmental responsibility for the acts of governmental officials PART NINE: REPORTS AND ARCHIVES Article 97 Official reports Article 98 Distillation of summaries of reports Article 99 Special reports Article 100 Official copies Article 101 Internal reports Article 102 Archives Article 103 Reference and numbering of documents PART 10: MISCELLANEOUS PROVISIONS Article 104 Transitional period Article 105 Repeals Article 106 Power to issue Regulations Article 107 Law coming into force

The Law covers in detail the structure and organisation of the Central Government, including the Cabinet, Ministers and Ministries, but also sets out briefly some guidelines for the structures of independent public public bodies and agencies and mentions government owned or part owned projects or companies. It is much more detailed than the 1962 Organisation of the Government of the the Somali Republic.

Initial editorial comments: My initial comments are that this is a much needed, long over due Law which ensures that all governmental bodies are based on establishment laws. It mentions briefly codes of conduct for public officials, but it could have set out as Schedules Codes of Conduct for both Ministers and public officials - hopefully, these can now effected through Regulations  issued by the President under  Article 106 of the Law. Two issues in relation to the powers of the President appear not have been dealt with adequately at law and may present future constitutional arguments:

1.  The first is the President’s power to appoint at will the staff at his office and special advisers and to reorganise the structure of the Presidential (and Vice Presidential) Office, assistants and advisers - a feature of all presidential systems of government.

2. Secondly, Article 63(3) of the Law (following Article 113 which states special organs of the State may be created in accordance with the law, when deemed necessary) makes it clear now that the President, having consulted any relevant persons, may establish independent public bodies tasked with special functions, but Article 64(3)  makes it mandatory that the establishment Law of any such public body must precede its formation. Nonetheless this ‘appointing’ or establishing  power, in my view, includes implicitly the power to reorganise or abolish such public bodies, unless their establishment laws state otherwise. But the Law does not even include a similar provision in connection with Ministries in respect of which one would expect a President, as head of the Executive, would  have similar or broader  powers, subject to budgetary and any other constraints set out by Law. This, therefore raises the issue of how   regular reorganisations  and reforms to the Ministries and public bodies and agencies  so as to improve their efficiency and effectiveness could  be carried out in a way that   accords with the budgets set by the House of Representatives or which seeks approval by the House for any relevant budgetary changes.

The brief provisions of Article 18 do not cover adequately these two issues which are dealt with in various presidential systems countries in different ways. The Somaliland Constitution is, in these respects, different from the US constitution which limits some of the  President’s powers of ‘appointment’ in respect of some ‘inferior offices’ as being  subject to a law passed by Congress (which is different from the requirement of Congress (Senate) approval of Some senior officials, as in the case of ministerial and other appointments in Somaliland ). Various US Presidents have therefore sought the passage of Re-organisation Acts to enable such changes.  There are some parallels, however, between Somaliland’s relevant constitutional provisions and those, for example of the Philippines, where their Administrative Law  addresses the two issues I have raised above in ways which balances the separation of powers between the Executive’s control/management  of the Government and  the Legislature’s budgetary and oversight powers. Perhaps, one way of squaring these circles in this Law would have been to set out in the Law (or in new amendments) the types of changes and reorganisations which could be done by the President under Regulations issued under  an amended Article 106 and those that require an amending Law because they involve budgetary changes. The latter type of reorganisation or restructuring will then require an amendment of this Law which would  need to be dealt with by the House of Representatives only as the House of Elders has no role in decisions relating to budgetary and financial bills.

Finally although Article 14 appears to list the decrees and orders the President may issue, the list perhaps should not have been set out as if it is an exhaustive one, as in any case, it does not, for example, include presidential powers to include Regulations in certain matters set out by law and to issue Decree Laws exceptionally in emergency situations set out in Article 92 of the Constitution. There is a need, therefore, for a separate Law that can cover more comprehensively  the various types of Somaliland primary legislation and secondary or delegated legislation and how these can be issued, and addressing also both the role of  the President, and, in appropriate cases, Ministers,  in delegated secondary legislation. It will also be an opportunity to standarise the terminology we use for the different types of legislation and to  revise/modify, where necessary,  the Italian constitution based types  of legislation (i.e Laws, decree laws, decrees, regulations etc) and the procedures for their adoption which is not already set out in the Somaliland Constitution. 

The Somaliland Cabinet

Article 81 of the Somaliland Constitution states that the Executive Branch of the state shall consist of the President, the Vice-President and the Council of Ministers appointed by the President, who is the head of this branch. The Council of Ministers consist of Ministers and Deputy Ministers and “shall assist the President in the fulfilment of his duties and shall resolve collectively the general policies, planning and programmes of the state” (Art.94(2)). Unlike the US, the Somaliland cabinet has therefore a legal status separate from that of the President, but the President chairs its meetings and all the members are not only appointed by him, subject to confirmation by the House of Representatives, but can also be dismissed by him, at will.

Although Article 94 of the Constitution mentions only ministers and deputy ministers, the presidential ministerial appointments nowadays includes Ministers (see Art. 22 of the new Law), Ministers of State (Art. 23) and Deputy Ministers (Art. 24) and ranking in this order. In  February 2011, the then fairly new  government  appointed consists of  20  Ministers and 6 Deputy Ministers. There are currently (April 2016) 26 Ministers and a dozen or so Ministers of State and deputy Ministers.

Ministers and Deputy Ministers (of whatever rank) cannot be members of the Legislature (Arts 48 & 70 of the Constitution).

Somaliland Ministries

A Minister may be responsible for one or more Ministries (Art. 94(6)). Article 27 to 52 of the 2015 Law on the Organisation of the Government etc (see above) lists the current (as at April 2016) Ministries as being 26 in number.

For contact details of each Somaliland Ministry: Click Here .  More information is also available at the websites of those Ministries that have dedicated websites (see above) and also at the Somaliland Government Website.

Presidential Advisers

Using his general powers, the Somaliland president has also appointed a number of advisers (often at ministerial rank, in terms of pay). There is no separate law which currently governs the appointment or confirmation of such high ranking “political” appointees.  The current President has so far appointed advisers covering the following portfolios (as at 2011):

• Social Affairs
• Political Affairs
• Parliamentary Affairs
• Youth Affairs
• Security
• Eastern regions
• International Relations & Recognition
• Economy, commerce & Investments

[Rather than following the model of the 1962 Law, Somalilandlaw.com recommends the adoption of an overarching Administrative Code which will include the structure, powers and duties of the various Ministries and Public bodies, as well procedures for their changes and issues such the procedures for delegated legislation and other administrative law matters -  This paragraph written a few years ago and I am pleased note that the new Law will form the a solid basis  for Somaliland Administrative Laws]

[30/12/2014  UPDATE: A draft Somaliland  Organisation of the Government Bill is now with the House of Representatives and is likely to became law in 2015 - The bill  is  kept here for historical purposes only]

Organic & Structure Laws

[Old text: According to information from the Somaliland House of Representatives, very few organic laws of Somaliland ministries have been passed since 1991. The exceptions appear to be the Ministries of Internal Affairs (1993)  and of Justice (Law No. 81/1996). It follows therefore that the other Ministries are either still based on a pre-1991 law or are awaiting the finalisation of an organic law. The structure of Ministries based on the 1962 Law is that they have a Director General who heads a number of Directorates or Departments, each headed by a Director and then below that are sections within each Directorate. We shall update this section when we are informed of any other organic laws.]

The new 2015 Law on the Structure of the Governement etc.  now serves as the establishment law for all the 28 Ministries listed in there (see Articles 27 to 52)  and these only need now Structure (Qaab-dhismeed) and staffing complement charts and functional rules  in line with the provisions of Articles 53 to 62 of the Law, the format of which can be standarised and then issued as a Presidential Decree under Article 104(1)  of this Law.

As for the public bodies and agencies, the Law sets out guidelines in respect of their establishment and structures and relations with relevant Ministers (see Article 63 to 88).  Under Article 104, any existing public body agency which does not have an establishment law (which includes structures and is line with this Law) must have one within 6 months. Those which already have establishment Laws must align them with the provisions of this Law.

PUBLIC BODIES

Article 113 of the Constitution sets up the following special organs, and Article 123 states that each such organ shall have “ a law setting out its structure, responsibilities and the status of its head”:

• The Prosecution service headed by the Attorney General - This is constitutional office
• The Central Bank: the Bank has an organic law passed by the 1993 -96 Parliament but is now governed by a new law.
• The Civil Service Agency: the Agency has an organic law passed by the 1993 -96 Parliament.
• The Auditor General: The Organic law of this office is Law No: 5 of 1998.

Another body appointed under the Constitution is the Judicial Commission set up under  Article 107(1) of the Constitution and the Somaliland Organisation of the Judiciary Law.

Article 113 adds that other special organs may be created in accordance with the law, but no law governing the procedures of their creation has been passed yet. The significance of these bodies is that they are supposed to function at arm’s reach from the Ministries. An example of such an organ created by the 2001 Election Law is the Somaliland National Electoral Commission.

Note, as stated above, the new deals extensively with  independent public bodies.

Public bodies/ agencies

Following the 1960s Somali Republic practice, there are also a number of semiautonomous public bodies that have been created since 1991.  Their establishment or organic organic laws are being or have been updated, but are still working under a Presidential Decree:

• National Public Contracts Board: 1962 legislation on public finances and Law on Public Contracts No: 79 of 1996
• National HIV/Aids Control Commission SOLNAC - Law No. 67/2014
• National Intelligence Agency - NIA Law
• NERAD (Disaster Relief Agency)- NERAD LAW.
• Electricity Agency
• Roads Authority
• Law Review Commission - Law still with the two Houses of Parliament (as at December 2014)
• National Printing Press
• Somaliland National Television:
• De-mining Agency: De-Mining Law No: 78 of 1996 - amended since
• National Development Council NDC  (Hay’adda Abaabul ka Saarka) - NDC Law No. 48/2011
• Quality Control Commission. QCC Law No. 68/2014
• ICT Commission
• National Sadaqa (Alms)  Commission
• Diaspora Agency
• National Good Governance Commission - Law No. 58/2012
• National Health Professions Commission - Law No. 19/2001
• Somaliland National Human Rights Commission Law (Law No. 39/2010)

 

Two other public autonomous organisations which  have their own budgets are:

• Berbera Port Authority
• Somaliland (Central) Bank – law passed by the 1993 -96 Parliament.

LOCAL GOVERNMENT (overview)

The main law governing Somaliland local government is the Regions & Districts Law (Law No: 23/2002, as amended in 2007). Somaliland is divided administratively into SIX regions

1. Hargeisa (later re-named Maroodijeeh) region.

2. Togdher region.

3. Sanag region.

4. Awdal region.

5. Sool region.

6. Sahil region.

In 2007 and 2008  President Dahir Rayaale Kahin announced the creation of 7 new regions. These were: Salal (taken out of Awdal), Gabiley and Haud (out of Maroodijeeh), Odweyne  and Buhoodle (out of Togdher), Sarar (out of Sool) and Badan (out of Sanag).

Each region is sub-divided into districts graded A, B, C and D. Districts, in turn, contain villages.

The Regional Councils are not elected, but include the elected Mayors of the districts in each region. District councils are, however, elected under the procedures laid down in the Presidential and Local Elections Law. Village councils are nominated by the elders and other prominent persons of the villages and are appointed by the District Councils.

CHALLENGING ADMINISTRATIVE ACTIONS/DECISIONS - JUDICIAL REVIEW

Articles 97 and 98 of the Somaliland Constitution includes as one of the functions of the Judiciary as that of adjudicating on disputes or proceedings between the government/governmental bodies and the public. It is also the function of the judiciary to adjudicate on all disputes which relate to compliance with the provisions of the constitution (Article 98(1)(c)). The Constitution, therefore, sets out a system of judicial review of administrative actions, as well as review of the constitutional issues.

(Coming shortly - an article on Somaliland: Judicial Review of Administrative Actions in Somaliland)