Copyright © 2007 Somalilandlaw.com. All rights reserved

 SOMALILAND FORUM POSITION PAPER

(09 May 2006)

 A Term Extension Too far: Guurti Resolution is Unconstitutional and Unacceptable

Introduction

1.   We, the Somaliland Forum, have been discussing the forthcoming end of the term of the House of Elders (Guurti) in October 2006 and the Guurti Indirect Elections Bill, which is currently being considered by the House of Representatives. We were therefore extremely surprised to learn that on Sunday 6^th May 2006, the Guurti considered a presidential decree  extending their term of office  for another 4 years up to October 2010 and promptly voted to endorse it. This is the third such extension of the Guurti’s original six year term of office which expired in 2003, and will, if unchallenged, mean that  Guurti members will serve well over two full terms before they face any direct or indirect elections.

 2.   It appears that neither the President nor the Guurti has consulted either the main legislative chamber, the House of Representatives which is currently considering a Guurti Indirect Elections Bill, or the political parties or the civil society.  Also the President’s decree had attached to it an advisory opinion from the Supreme Court (sitting as the Constitutional Court), which the President apparently sought secretly on 22 April 2006, and was given by the Court, in the same fashion, on 24 April 2006.  Next, the Guurti, at its meeting on Sunday 6^th May 2006, considered and rejected overwhelmingly a motion that the Presidential decree be forwarded also to the House of Representatives and endorsed the extension of their own term of office exclusively by a vote 66 members for and 3 against, with the Chairman abstaining – a high attendance of 70 out of the maximum 82 members.

Our views

3.    We believe that:

a)    The decision to extend the Guurti term has no constitutional validity and that that the President and the Guurti have no powers to extend the term of office of the Guurti as there is no provision in the Constitution which allows them to do so.

b)     This legal position was known before and the previous extension of the term of office of the Guurti in 2003 was undertaken through a one clause  law passed by the House of Representatives and the Guurti and a law that linked the term of office of the Guurti to the previous House of Representatives so that the Guurti can benefit indirectly from any extension of the term of the Representatives under Article 42(3)  of the Constitution[1] which allows extension of the Representatives’ term of office in situations when “dire circumstances” make the election impossible to hold.

c)    It is clear from the reading of the plain words of Article 42(3) that it applies ONLY to the House of Representatives, and it can, by no stretch of imagination, be extended to cover the House of Elders.  We therefore believe that the Supreme Court advisory opinion to the effect that Article 42(3) allows the Guurti itself to extend its own term is incorrect and perverse.  The Court appears to have completely overlooked the 2003 Clause 19 Resolution of both Houses (see below) which legitimised the earlier Guurti term of office extensions.

d)   We do not understand the Court’s assertion that Article 38(1) of the Constitution [2] which simply says that the legislative powers in the state of Somaliland shall be vested in the two Houses somehow makes them “equal” and therefore allows Article 42(3) which applies exclusively to the Representatives to be applied to the Guurti.  Does that mean therefore that all the different articles which apply only to one or the other should be interchangeable?

e)   In our view, as  the Guurti can not rely on Article 43(2), their current resolution cannot become law without it being endorsed by the House of Representatives and signed into law by the President (see Article 77 and 78 of the Constitution). In any case, the Guurti specialises in initiating legislation relating to the traditions, religion and security (see Article 61(1) of the Constitution).

f)    We believe that the Supreme Court has no power under the Somaliland Constitution or under the Organisation of the Judiciary Bill passed by the House of Representatives (but not yet passed into law) to give “advisory opinions”– some constitutions in countries with parliamentary or mixed parliamentary/presidential systems of government allow for such power in limited circumstances but it is rarely used and it has often been criticised as politicising their supreme courts.

g)   Somaliland has opted for a US style presidential system of government with a high degree of separation of powers and the Somaliland Organisation of the Judiciary Bill follows the US[3] example and confines the Constitutional Court’s jurisdiction to “controversies” and matters in dispute[4].

h)   Article 98(1) of the Constitution[5] which the Supreme Court relied on as giving it “exclusive power to give opinions” is a general power to all the courts of the land  that they can interpret, in accordance with the Constitution, the laws of the land in any matter that comes before them, and this does not give the Supreme Court or the Constitutional Court an additional power to give exclusive and secret advisory opinion to the President.  If this Article gave the Court such an “exclusive power” as claimed by the Court, why has the Court not responded to the various petitions from the oppositions parties to make its opinion known on issues, such as the notorious unconstitutional government security committees  which sentence citizens to prison terms without any judicial involvement?

i)     The Somaliland Supreme Court has damaged its own standing further by not asking for submissions (as is done by supreme courts which give advisory opinions) from interested groups  and, in particular, the House of Representatives, when it knew of the highly controversial nature of the request for advisory opinion.

j)     In line with the law and practice of supreme courts that give advisory opinions as set out in their constitutions[6], any advisory opinion given is NOT binding, because it is not a judgment and so, in our view, even if it can be said that the Somaliland Supreme Court has such a power, the advice given is not binding and can be challenged and have to be heard, unfortunately, by the same court.

k)    Finally, even if the term extension can be effected under Article 42(3), we do not accept the arbitrary period of 4 years chosen as the period during which the “dire circumstances” preventing an election can come to an end.  We note that the previous extensions of the House of Representatives (and hence the Guurti) were one year initially, and then 2 years.  The recommendation of a 4 year extension appears to have come from the President.

 Our recommendations

4.   In the circumstances:

a)   We urge the Guurti to rescind its resolution and to participate in a national debate on how best the “indirect” elections of the House can be conducted by October 2006. We should point out that the Guurti has failed to follow the precedent it set when considering term extensions of the President in 2002 and the House of Representative in 2002 and 2003, when it did undertake extensive and wide consultations and came up with reasoned recommendations.

b)   We ask the House of Representatives to consult widely on the current Bill on the Indirect Elections of the House and to pass it as soon as possible.

c)    We recommend that the Guurti should be indirectly selected by the communities (Beelaha) under an agreed formula, which, if necessary, can be the same formula used in the 1996/97 Hargeisa Conference and whilst we cannot hold a Shirweyne, a process for their selection overseen by the members of the Saladin Council is the best option, in our view.

d)   We want to see the retention of all that is best of the Guurti and we  deprecate all past and current efforts to politicise them. We want to keep them as traditional representatives of the communities (beelaha) until such time we see fit to re-design our second chamber. Somaliland is unique in having a chamber that reflects its traditional representatives, and we are therefore against any proposals setting out direct elections of the Guurti or their nomination by the political parties. Indeed, we want to make the Guurti “non-party political” and would advocate that the new Guurti Indirect Election Law should include a requirement that the Guurti members will not join or support the political parties during their term of office, and should set out the penalties for the infringement of these requirements.

e)   We consider the Advisory opinion of the Supreme Court as at at best, wrong and non-binding in character and, at worst, beyond its current powers. We recommend that the Somaliland Organisation of the Judiciary Law be passed soon and that a new Law setting out the procedures of the Supreme Court, in detail, be drafted and passed urgently. We urge that, in line with the Somaliland Organisation of the Judiciary Law (and the US Supreme Court), it should be made clearer that, in constitutional matters as in the civil law, the Supreme Court will only deal with disputes or controversies.  If we are minded to introduce advisory power (which we caution against), then we should add safeguards,  such as the power being limited only to proposed legislation, or as in Canada[7], where the reference to the court is addressed at a hearing and any interested parties can be heard before the opinion is given; or as in US states, like Massachusetts,[8] where it is clear by law that the advisory opinion is only for solemn occasions and is given by the justices as individuals and not the court and that opinions are not binding and any future litigation on the same matter has to be adjudicated upon afresh by the court.

 The previous term extensions

5.        We have, in the past, commented in length about the previous extensions of the terms of office of the President and the two Houses and our view has alawys that there was no constitutional provision allowing the extension of the Guurti term of office.  It is worth examining again how the previous Guurti term extensions were effected by the House of Representatives and NOT just the Guurti and the President.  In March 2003, a few month before the Guurti’s six year term of office was to expire,  the Government submitted to the House of Representatives a Bill relating to the Indirect Elections of the members of the House of Elders.  The Bill proved to be controversial, as it was proposing that the President appoints a committee which will then select the members of the new Guurti, and the House of Representatives decided on 27 March 2003 that it would put the Bill to one side, for the moment, but it would approve a single clause (clause 19) in the Bill which stated as follows:

 “19. If the indirect elections of the House of Elders can not take place because of dire circumstances or because of the practical arrangements, the House of Representatives, on receipt of the President’s reasoned proposals, shall consider how long the circumstances will be overcome and shall reach a resolution thereof”

 In effect, the Clause mirrored Article 42(3) of the Constitution and was so worded because the  Representatives and everyone else, including the Guurti and the President, accepted that Article 42(3) was only applicable to the House of Representatives.  Of the 42 members attending the meeting of the Representatives, 41 voted for this proposal and 1 voted against.  It was said in the debate that this one clause law will be the “key” to extend the term of the Guurti.  The Guurti also, of course, approved the one clause (clause 19) .

 6.  The House of Representatives also considered another Presidential proposal, which, this time appeared in the form of a Presidential Decree (Decree No: 105 of 27 March 2003) , and which stated the following:

 “The President of the Republic of Somaliland

Having seen:  Article 90, clause 1 of the Somaliland Constitution;

Considering:  the provisions of the “law” on the indirect elections of the House of Elders;

Recognising:  that the planned budget cannot extend to both the Presidential and the parliamentary elections;

Aware of:  the fast approaching end of the term of office of the House of Elders;

Having seen:  the Resolutions of both Houses approving Clause 19;

 Proposes that term of office of the House of Elders (Guurti) shall always expire one year after that of the House of the Representatives and that of the President”

This proposal was approved by the House of Representatives on a vote of 51 votes for with none against and no abstentions and so this meant that whenever the House of Representatives was given an extension under Article 42(3) of the Constitution which has to be decided by the Guurti, then the Guurti got a similar extension, courtesy of the “Clause 19” proposed and passed by the House of Representatives. 

 7.   Nearly a year earlier, the Guurti had, on 27^th April 2002,  already passed a resolution[9] under Article 42(3) of the Constitution extending the five year term of office of the House of Representatives, which was due to come to an end in May 2002, by one year.  A second similar Resolution was passed by the House of Elders on 3^rd March 2003, again under Article 42(3) of the Constitution,  but this time, it extended the term of office of the House of Representatives for a further period of TWO YEARS from the date of  expiry of the term which was on 25 May 2003.   Of the 70 members present (including the Speaker who did not vote), 50 voted for the Resolution, 12 abstained and 7 voted for an extension of 3 years (and not 2 years).  The significance of this two year extension was that it came after the March 2003 term extension linkage formula passed by the House of Representatives, and hence when the Guurti voted for the 2 year extension of the term of office of the House of Representatives, they were also automatically triggering a similar extension for themselves.  This “escalator” came into effect again when it was announced by the National Electoral Commission (NEC) that the election of the House of Representatives will not be held until 15 September 2005.  Using Article 42(3) of the Constitution again, the House of Elders resolved, on 28 May 2005,  that the term of office of the Representatives will be extended further from 25 May 2005 until 15 October 2005  (i.e an additional  143 days).  As it turned out, the election did not take place until 30 September 2005.

Our questions

8.     It is clear that the term extension linkage formula has now come to an end as a new House of Representatives has been elected and assumed office at the end of 2005.  But the point which has been missed by the President and the Supreme Court advisory opinion is that at no time during the last 3 years were the Guurti directly extending their own term – they were simply using Article 42(3) to extend the term of office of the Representatives.  The questions that need answering now are:

a)     Why have the President and the Guurti not consulted the main legislative chamber which was instrumental in the previous Guurti extensions of term office this time?

b)     Why has the Supreme Court (or the Constitutional Court), which must be aware of the controversy this issue will engender and fully knows that it may almost certainly be in a position to adjudicate on this issue, has not either declined to give an advisory opinion, or,  if it was so minded to give one, hold public hearings on the issue and be transparent in the way it has reached and given an opinion?

c)     Why have the President and the Court both disregarded the “Clause 19” option where the Representatives consider whether there are dire circumstances which may or may not necessitate an extension of the Guurti term of office?

 Conclusion

9.    We do not wish to second guess anyone’s motives, but we trust that this was not an attempt to bypass the House of Representatives which is currently controlled by a coalition of the two opposition parties, both of which have advocated a different formula for the indirect elections of the Guurti. Whatever the reasons for the way this was done, we believe it has done untold damage to the standing of both the Supreme Court and the Guurti, and can only worsen the relationship between the President and the House of Representatives.  Unfortunately also this has created an unnecessary constitutional controversy in which the Guurti, the traditional mediators, and the very Court which is expected to adjudicate on constitutional controversies are already very much involved as partisans and are no longer impartial bodies that can facilitate a solution to this crisis.

 10.     We urge all political parties, and civil organisations to make their opinions known in a peaceful fashion and to continue safeguarding the public order and security of our country.  We have faced difficult constitutional issues before and we will be able to sort this one out, as well, in the Somaliland way of consensus and compromise for the greater good.    Those of us who may have forgotten momentarily the importance of working together for the good of all must pull back from the pursuit of any short term sectional interest and must work to strengthen our democracy and peace.

 Guul iyo gobanimo

SOMALILAND FORUM         

9^th May 2006

[1] Article 42(3) of the Constitution states:

“If the election of the House of Representatives cannot be conducted because of dire circumstances, the outgoing House shall continue in office until the end of these circumstances and a new House is elected.  Dire circumstances are: a wide war, internal instability, serious natural disasters, such as earthquakes, epidemic diseases, (and) serious famines; and shall be determined and resolved by the House of Elders on the proposal of the Council of Government”.

[2]  Article 38: The Parliament and Joint Sittings

 1.The legislative powers of the Republic of Somaliland are vested exclusively in the Parliament which shall consist of two Houses - the House of Representatives and the House of the Elders. The power to legislate cannot transferred to anyone outside the Parliament.        

[3]  According to Article III of the US Constitution, the Supreme Court's power, in common with that of other federal courts, is limited to "cases in Law and Equity." No federal court, including the Supreme Court of the United States, can render an advisory opinion, even at the request of the president or Congress.

[4]  See Article 6(4):

“Maxkamadda Dastuurigga ahi waxay awood u leedahay:

a)   inay go’aan ka gaadho dacwadaha la xidhiidha go’aamadda maamulka iyo xeer dejinta ee aan waafaqsanayn Dastuurka ee ay soo hor dhigtyo cidda danaynaysa

b) inay macnayso, fasirtana Dastuurka iyo xeerarka kale ee dalka lagaga dhaqmayo, marka laysku qabto ujeedadooda .”

[5]  Article 98(1) states:

“1. The Judiciary shall have the power to:

a)   interpret, in accordance with the Constitution, the laws passed by the Constitutional bodies and emergency laws;

b)  adjudicate on disputes between the governmental bodies and the public and between the members of the public;

c)   adjudicate on all disputes which relate to compliance with the provisions of the Constitution.

[6]  Such as some Eastern European and third world countries. There is also about 10 US state supreme courts and Canada. All of these have express provisions in their constitutions and it is mostly for opinions on draft legislation.

[7]  See s.53 and 54 of the Supreme Court Act  1985. It was also held that the opinions are not binding. Canada is the only country among the old commonwealth which allows a limited advisory opinion jurisdiction.

[8]  Part II, Chaper 3, Article 2 of the Massachusetts Constitution.

[9]The voting was 53 votes for, and 3 abstaining out of 57 members (including the Speaker) present.