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THE SOMALILAND SUPREME COURT AND THE PRESIDENTIAL  ELECTIONS

By Ibrahim Hashi Jama

(This Article was written in June 2003 before the Supreme Court gave its decision on the final outcome of the presidential elections)

Somalilanders everywhere are watching  carefully the expected final declaration of the results of the presidential  elections, which shall be made by Supreme Court any day before 15 May 2003, when  the term of the incumbent President, Mr Dahir Rayale Kahin comes to an end.  The reason why this august body has suddenly  come into the limelight is the Somaliland National Electoral Commission which  conducted the first ever presidential elections in the Republic of Somaliland on 14th April 2003 declared,  albeit belatedly, on 19 April 2003, that Mr Kahin has won the election by a  margin of 80 votes.  The Election Law  (Articles 64 & 65), however, states that this result is provisional and  that, having considered any complaints submitted to it within 20 days, the  Supreme Court shall declare the final result. The main opposition party, Kulmiye, which has already announced its  dissatisfaction with the count, has now submitted its complaints to the Court  and, Mr Kahin’s party has also now raised its own grievances. So the scene is  set for this important drama so early in Somaliland’s burgeoning democracy.  But what do we know of this court, and how  well equipped is it to rise to this challenge?

Somaliland re-asserted its  independence in May 1991[1]  and started re-building its institutions.  Article 21 of the National Charter[2]  adopted at the Borama Grand Conference of the Somaliland Communities on 24 April  1993 confirmed that the Supreme Court is the highest organ of the judiciary, and  shall also serve as the Constitutional Court. Article 23 stressed the  independence of the judiciary and, in a difficult era, made it clear that the  decisions of the courts shall not be subject to review, other than by a higher  court - an unequivocal statement, which was not so explicitly repeated in the  later Constitution[3].  The 1993 Organisation of the Judiciary Law  retained the structure of the court system which existed prior to 1991 and which  consisted of three tiers, starting with the courts of first instance, the  District and Regional Courts, at the bottom; the Court of Appeal in the middle;  and the Supreme Court at the top.  Under  this Law, the Supreme Court was to consist of a Chairman and four judges.

The Interim Constitution of the  Republic which was adopted at the Hargeisa Grand Conference in February 1997  laid down that the Supreme Court (which was also the Constitutional Court) shall  consist of at least 4 judges.  The  President can appoint the Chairman of the Court subject to the confirmation of  the both Houses of Parliament, and can dismiss him with the written consent of  the standing committees of both Houses (see Article 130).  When the revision of the Constitution was  being discussed in 1999/2000, the Somaliland Forum were seriously concerned  about the apparent ease that the Supreme Court Chairman and judges can be  removed from office, and in its formal comments, the Forum stated the  following[4]:

“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 Somalian Constitution 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 - see article 130 and the  new article 82), and we are concerned about the effect that this may have on the  quality of the appointees.” 

When the final revised Constitution was  adopted on 30^th April 2000, it stated that the Supreme Court shall  consist of the Chairman and at least four judges and that the President,  in consultation with the Judicial Commission, shall nominate the Chairman and  the judges of the supreme Court and the nominations shall be subject to  confirmation at a joint sitting of both Houses within three months.  The President may relieve the Chairman of the  Court of his duties, but this will now require the approval of both Houses  (Articles 101 and 105). It is a matter of regret, to this author, that the  dismissal of judges of the Supreme Court was not added to this Clause so that  this also required parliamentary approval. The requisite legal experience for appointment to the Court was also  reduced from the daunting 20 years to 10 years.

The last change was made because of the  difficulties of getting candidates who can meet the required qualification  relating to experience, but, to some extent, the other changes were also brought  in to address some of the issues surrounding presidential appointments to the  Court during the late President Egal’s regime. President Egal’s numerous appointments and dismissals of Chairmen of  the Supreme Court were a matter of considerable concern to the Parliament.  An illustration of this matter were the  “boomerang” appointments of Mr Osman Hussain Khayre (Shunu).  Osman Shunu served as Chairman of the Supreme  Court until 1998 when the President decided to dismiss him without getting the  approval of the Standing Committees of the two House as the Constitution  demanded, at that time. The President then proposed to nominate Osman Shunu to  the office of Attorney General, but the House of Representatives which needed to  confirm the appointment within 3 months under Article 114 of the then Interim  Constitution refused to do so. Later in December 2000, the President decided to  dismiss the then Chairman of the Supreme Court, Mr Mohamad Haji Said Aw Abdi  (allegedly because of the Courts ruling on the case concerning some TOTAL[5]  ex-employees), again without the approval of the two standing committees, and  re-appointed Osman Shunu in January 2001 to the office of Supreme Court  Chairman.  The appointment was never  ratified by the two Houses, but Osman Shunu remained acting Chairman for well  over a year until 26 January 2002.  The  appointment was repeatedly renewed by the President every three months. 

The dismissal of Chairman Mohamad Haji  Said did not pass without any problems, as it was widely believed to have been  linked to the Court upholding a lower court’s decision to award substantial  damages to former employees of the Oil importing firm TOTAL.  The President in fact issued, on 4 November  2000, a decree setting aside the decision and forwarded to Parliament a Bill  setting up a Committee of the House of Elders which can act as review body[6]  for the decisions of the Court relating to civil matters[7].  The Bill was understandably rejected by the  House of Representatives (with a vote of 26 against, 4 for and 16  abstaining).  Indeed all this formed the  basis of one of the Articles of Impeachment in July 2002, when 36 members of  the  House of Representatives put down a  motion to impeach President Egal.  Article 1(1) of the motion alleged presidential interference in the  independent judiciary and cited, among other things, the removal from office of  Chairman Mohamad Haji Said and the overturning of the Supreme Court decision.  Incidentally the motion was defeated by one vote (36 for and 37  against). 

With the sudden death of President  Egal, the new President, Mr Dahir Riyale Kahin appointed Judge Said Farah  Ahmed as the new Chairman of the Supreme Court in mid June 2002, and on  7^th August 2002 the appointment was confirmed by both Houses on a  vote of 117 for, none against, and 4 abstaining.  The Houses were informed that Mr Said Farah  Ahmed had experience as a judge in neighbouring Puntland.  In June 2002, the President also appointed a  new Advisory Committee on the Judiciary  (Guddida Xalinta  Arrimaha  Garsoorka Maxkamadah,  literally, “the Committee for the Resolution of  Judicial/Court Affairs”,  which was almost immediately criticised as being  unconstitutional by six serving judges (who later resigned).  There is of course nothing wrong with the  President listening to advice from any quarters, but the only committee he is  obliged to consult on judicial appointments is the Judicial Commission, which is  a body set up under Article 107 of the Constitution and consisting of the  Chairman of the Supreme Court, two Supreme Court Judges, the Attorney General,  two high ranking Civil Servants[8]  and four members from the two Houses of Parliament.  It was surprising, however, to see in the  Presidential Decrees 14/2002 and 15/2002 of 29^th June 2002, which  made considerable changes in judicial appointments, that the advice of both the  Judicial Commission and that of the new Advisory Committee were equally  acknowledged in the preamble to the decrees.

As part of extensive changes in the  judiciary made on 29^th June 2002, the President dismissed the  remaining four members of the Supreme Court and appointed the following six new  judges (Decree No:14/2002 of 29  June 2002):

1. Abdirahaman Yusuf  Ainaan

2.  Skeikh Ali Abdi  Gulaid

3. Osamn Ismail Ahmed

4. Abdiqadir Omer Dulaeh

5. Mohamed Omer  Gelleh

6.Yasin Hasssan  Ismail

An Editorial in the English Language  Weekly, The Somaliland Times[9],  Issue 25 of 6, 2002,  commented as  follows:

“For  many years now, this country’s Judiciary system has been the target ofuniversal criticism and condemnation by all Somalilanders. Chronically  corrupt and grossly under-qualified Judges, coupled with frequent interventions  by the Executive Branch in the Judiciary process, have effectively reduced Somaliland courts to an open market where  Justice is sold to the highest bidder. Thus the overwhelming support with  which Somalilanders have so far greeted President Rayale’s decision, last  Sunday, whereby the entire membership of the Supreme Court has been sacked and  replaced by a new one. In fact, Somalilanders have been treating the judicial  system with so much disdain that they sighed with relief, when 5 regional court  judges and one district court magistrate later resigned reportedly while  protesting the summary dismissal of their colleagues at the Supreme  Court.”

The paper added that the key factors  for ensuring restoration of integrity, fairness and effectiveness of the justice  system were the raising of the salaries of judges, the cessation of the  Executive’s intervention, the introduction of clear and improvements in the  training of judges.

Turning now to the work of the Court,  the 1999 UNDOS study of the Somaliland Judiciary[10]  reported that the Court consisted, at that time,  of the Chairman, a Deputy Chairman and five  other judges. All the judges were graduates of “reputable universities such as SomaliaNational University or Al-Azhar University” and have a proven track record  in judicial matters.  The Court was  divided into five sections:

1. Civil and Labour  Section.
2. Personal Statute Section  (dealing with family law, succession etc).
3. Penal  Section.
4. Administrative  Section.
5. Constitutional Section.

A full bench normally tries matters  which are considered by the Chairman as being of particular importance and  issues relating to elections are likely to fall within this category.  UNDOS has, however, commented that as there  has never been a functioning Constitutional Court in Somalia, the judges were not  confident in constitutional matters and no such cases have been heard so far.  That was in 1999, and since then, at least,  one case has been heard by the Constitutional Court recently.  That case was a petition  brought by  Ms Fawsia Yusuf H Adan and  Others, who challenged the ban under the electoral laws of independent  presidential candidates who are not put forward by the three political  parties.  The petitioners argued that  Article 22 of the Constitution gave every citizen the right to vote and to be  elected to an office; that Article 83(4) simply stated that the candidate with  the highest number of votes wins the presidential elections and that, as the  Constitution is highest law of the land, these right cannot be restricted. It is  certainly correct that the important civil right to stand for election has been  curtailed, but Article 22 of the Constitution which sets out this right is  prefaced by the phrase “every citizens, who fulfils the requirements of the  law”.   The Constitution, therefore leaves to the law the details of these  requirements and eligibility issues, based on age, deposits, minimum number of  supporters etc are often set out in electoral laws for both administrative and  practical reasons.  The relevant law in  our case includes Article 35 of the Elections Law which states that “candidates  standing for election to the offices of President and Vice-President must be  members of and be nominated for election by an association/party which has been  registered[11]  or approved”. This is, of  course linked to Constitutional limit of three parties under Article 9(2), which  does of course, limit the constitutional rights to stand for election under  Article 22 and the right of association under Article 23.  Although I have still my own misgivings about  this artificial limit, the reason for it was the Somaliland people’s desire not to go back to the chaotic  free for all clan-ridden elections[12]  of the 1960s.  Many Constitutions or Bill  of Rights have provisions which explain the extent of limitations that may be  imposed on the rights set out therein.  For example, section 1 of the Canadian Charter[13]  states, “The Canadian Charter of Rights and Freedoms guarantees the right  and freedoms as set out in it subject only to such reasonable limits prescribed  by law as can be demonstrably justified[14]  in a free and democratic society”.   But  no limitation must negate the essential content of the right in question and  hence the core element of the basic right must not be encroached upon.  Whilst I have not seen the reasoning of the  decision of the Supreme Court on this issue, it was not surprising that it was  reported in late February 2003 that the Court dismissed the  petition.

The Supreme Court’s decision-making in  constitutional and administrative issues is going to be of critical importance  to the development of our young democracy.  At a time when the unelected Houses are not always as effective as they  ought to be in checking the often rapacious powers of the Executive, the Court  could play an essential role in safeguarding the rights and freedoms of  individuals and groups if the public become confident in its impartiality and  efficiency.  The considerable changes  made in the personnel of the judiciary last year by President Dahir Riyale Kahin  were, by and large, very widely welcomed, but it is important that the Supreme  Court works hard to gain the confidence of the populace in all its work.

It is perhaps apposite to note that  pre-Dictatorship Supreme Court of Somalia, which in the early/mid 1960s handed  down a number of far reaching decisions relating to the 1964 elections, did a  u-turn in the 1969 elections and decided that as the Constitutional Court under  the then Constitution of 1961 was not properly set up, it had no jurisdiction[15]  to deal with some of the elections cases.  The Court was by then presided, by a Somali judge[16].  Commenting about  1969 elections, Samater wrote[17]  that

“the first institution to show signs  of the atrophy which had already afflicted the political parties was the Supreme  Court.  In the days following the  election about 47 petitions, all challenging election results, were refused  hearing by the Court on the technical grounds that it lacked authority to  intervene in such matters.  Whatever the  merits of the cases, the court’s action smacked of interference by the  government, and caused a corresponding amount of bitterness and disrespect for  national institutions”

Yet a few years before that, the Court  accepted[18]  jurisdiction under its general power to review administrative decisions so long  as the petitions were submitted by persons who had a direct and real interest in  the decision by the Electoral Committees.  Those who were held to have real interest were usually defeated  candidates, rather than the officials of the Party concerned.

An example of one of the cases dealt  with by the Supreme Court in 1964 was the case of Haji Mohamad Hussein and  Others (Judgment delivered on 9/07/1964 by Guiseppe Papale, Acting  President).  Briefly, the Chairman of the  Electoral Central Office set aside the elections held in the whole district of  Merka on the ground that there had been, as ascertained, alteration of the  results of the voting in one of the polling stations.  The evidence taken on oath by the Attorney  General indicated that the total number of persons who voted there was 395 (and  not 695) as shown in the records, and that the valid votes were 375 (and not  675). Consequently, the votes cast for SYL were only 62 (and not 362), with (out  of the remaining 5 parties), SNC gaining the highest number of votes of 294. The  petitioners complained that the Electoral Office Chairman had no power to set  aside the whole elections of the district.  In overturning the decision of the Electoral Office, the Supreme Court  stated that the Electoral Office had no other power under the law, save to  correct the results of the counting by subtracting the 300 invalid votes and  allotting the seats to the appropriate winning parties.  Setting aside the whole Merka elections meant  making invalid over 20,000 votes, the validity of which were not questioned. The  Court therefore directed that the Electoral Office implement its decision with  two days, and the outcome was that one seat was assigned to the SNC Party and  another to the SDU Party[19].

Commenting on this power of the Supreme  Court to review administrative decisions and, in hindsight, speaking too early,  Mr Justice N A Noor Muhammad wrote[20]  that the Supreme Court

“has risen above party or political  considerations and has not hesitated to annul the acts of the administration  where it found that they were contrary to the law.  The impartiality of the court and the  readiness on the part of the administration to carry out the directives of the  Supreme Court are indeed the sine qua non of the rule of law in a free  society.” 

By 1969, and before the onset of the  dictatorship, the Somali Republic Supreme Court  fell very much below these lofty heights,  and by mid 1970s, when I practiced law in Somalia, the Supreme Court building  was where all the Ministry of Justice headquarters staff and lawyers who were  housed next door to the Court building, and all the judges and prosecutors from  the nearby local courts and the Attorney General’s Office, were made to  congregate once every week in its hallowed hall to be given “orientation  lectures” about Siyad Barre sayings. 

We have, off course, learnt some of the  lessons of history and the Somaliland Supreme Court was assigned very early on  to be the Constitutional Court, without  any other modifications[21].  There is no question, therefore, of the Court divesting itself of this  power.  The Elections Law[22]  sets out the Court’s role with regard to the presidential elections as  follows:

“Article  64: The Declaration of  the Result of the Presidential Elections

When the Chairman  of the Commission receives from the district and regional electoral offices (all  the written records), he shall:

a)  reach decisions  about the claims relating to the voting and the count;

b) count and add up  (arithmetically[23])  the valid votes and the incorrect or invalid votes, which have been forwarded by  the regional electoral offices;

c) having confirmed  fully  and being satisfied that the  (election) activities have been conducted properly, declare the provisional  results of the elections of the President and the Vice-President.

Article  65:  Elections  Claims

1. The Supreme Court  shall have (the sole) jurisdiction to deal with claims relating to the elections  of the President and the Vice-President.  These claims must reach the Court office within 20 days beginning from  the date when the election results are declared.  No late claims shall be  considered.

2.  On receipt of the  written records from the district and regional electoral offices and from the  central office of the Commission, and having checked that the elections have  been conducted properly in law and in the way the calculations were done, the  Supreme Court shall declare the result of the election of the President and the  Vice-President.”

Before  I look at the Court’s role in this election, it should be noted that under  Article 58 of the Elections Law, each Regional Electoral Office which is  expected to receive a copy of the written records of  each polling station, as well as the total  results of the votes as declared by the districts in the region and the total  votes cast for each party as forwarded by the District Electoral Offices of the  region, shall check the calculations of the results of the total votes in its  region.  The Chairman of the Regional  Electoral Office should then make a written record of this task in the  appropriate form in triplicate, and forward two copies to the Central Electoral  Office (the Commission) and the original record to the Supreme Court.  So even before the Electoral Commission  declares the provisional vote, the Supreme Court should have the original  records from all the regions.

The  task facing the Court under Article 65 of the Elections Law is therefore four  fold:

1.  To  check that the elections have been conducted properly in accordance with the  law.

2.To  reach final decisions about any complaints.

3. To  satisfy itself that the calculations have been carried out  correctly.

4.  To  declare the final results.

I  would only comment on the first two tasks which are, to some extent interlinked.  Checking that the elections have been conducted properly involves an examination  of all the reports submitted and the decisions made by all the Electoral Offices  from the polling station through to the District, Regional and national  offices.  The Law lays down the  powers and duties of all these offices and it is up to the Court to satisfy  itself that they have exercised these in accordance with the law.  Clearly this is limited to an examination of  the records, but a main area of the Court’s interest will be the decisions made  by each office, and particularly by the Central Electoral Office (the Electoral  Commission), which would have already reviewed the decisions of all the other  offices.  The powers and duties of the  Central Electoral Office (or the Electoral Commission) are set out in the  various Articles of the Elections Law, and as far as the final stages if the  election are  concerned, these are set out in Article 64 (above). Briefly, the  Commission is charged with the task of reaching final decisions about all the  complaints relating to the voting; totalling up all the regional returns and  satisfying itself that all the election activities have been conducted properly  and in accordance with the law.  In turn,  the Supreme Court’s task under Article 65 of the Elections Law is broadly  similar, but it has the added task of considering any further relevant  complaints submitted within 20 days of the declaration made by the Electoral  Commission.

When  examining the decisions of the Electoral Offices (including the Commission), the  Court will not only be looking as to whether any obvious errors have been made,  but will also be examining whether any of the decisions or actions taken by the  Commission strayed beyond their powers and duties under the Law.  It is hoped that the Court will be guided by  the modern concepts of judicial review, rather than the Italian based  administrative actions, which judges who were educated at the Mogadishu Law  Faculty and may more familiar with, and which have been broadly limited[24]  to lack of jurisdication (incompetenza);  excess of power (ecceso di  potere)  and violation of the law (violazione di  legge).  Briefly, and borrowing from the growing  British judicial review law[25],  the three main issues the Court should consider are:

a) Illegality -   whether the Commission/electoral offices understood the law that they were  implementing and gave effect to it, at all stages. This also includes the way  the Commission/electoral office(s) have exercised their discretion, as they  ought not to have  fettered their  discretion unduly, nor delegated their decision-making powers to anyone  else.

b) Procedural impropriety -  covering the  standards the Commission/electoral offices ought to have adhered to, such as the  duty to give a fair hearing to everyone affected by their decisions; duty to be  free of bias; and an obligation to act in the way they said they would act if  this has created a legitimate expectation.

c)  Irrationality -  acting in a reasonable way so that a decision is not one  which is so outrageous in its defiance of  logic or of accepted moral standards that no sensible person who has applied his  mind to the question to be decided could have arrived at it[26].

I shall make no comments on the  substantive issues of this matter, as I am neither privy to the details of the  complaints, nor would I want to pre-empt the decision of the Court.  It is hoped that the decision of the court  would be well reasoned and would add to the law and practice in this area and  strengthen our democracy.   Widner [27]  stresses that: 

“ courts can  enhance the levels of public contestation and inclusiveness of  participation in political processes, as well as help to implement democracy as  a set of  everyday practices. The most  direct impact on democratic culture may reside in reviewing the administration  of elections. This extends from thecounting  of ballots to the fairness of campaign practices. Inability to handle challenges  expeditiously can undermine the legitimacy of new governments and sow the seeds  of deep division. Courts have leveled the playing field among contenders for  public power by upholding rules that support free and fair  elections.”

Whatever  decision the Somaliland Supreme Court reaches, it is hoped that it will keep in  mind the levelling of the playing ground for everyone and would not shirk from  the difficult tasks that face it. The Court may well  also be dealing soon with the constitutionality of the recent extension of the  term of office of the House of Elders, but the  question that many Somalilanders will be asking is:  Is the Court going to act like the Supreme  Court of Judge Muhammad Noor or will it be like that of Judge “Buur  Hakaba”?

© Ibrahim Hashi  Jama April 2003

[2]  The Charter (Axdiga Qaranka) remained in  force until February 1997 when the interim Constitution was  adopted.

[3]  Article 97(2) of the current (revised)  Constitution states that the Judiciary shall be independent of the other parts  of state (i.e the Executive and the Legislative).

[4]  See: www.somalilandforum.com . I served as the Chair of the Forum Somaliland  Constitution Committee, which prepared the extensive comments on the proposed  changes.  We were pleased to learn that  our comments were considered by the House of Representatives.

[5]  There were earlier allegations about the  President signing a preferential agreement with this company, without informing  the House of Representatives about its details.

[6]  Hence the significance of the Article 23 of  the National Charter! 

[7]  The proposed review powers were confined to  civil matters, because, in effect, the President has already the power under  Article 90 of the Constitution to issue pardon (or indult) and amnesty in  criminal matters.  This is backed up by  the provisions of the Somali Penal Code which extinguish the offences or  punishment in these cases - see: Article 144 (Amnesty) and Article 149 (Indult  and Pardon). I am not aware of any  objective guidelines, which govern the exercise of these presidential powers,  but Indult, which covers impersonal categories of offences/punishment has been  used at Eid occasions,  and the more  problematical pardon, relating to individuals has been used selectively, during  the last few years. 

[8]  The Director General of the Ministry of  Justice and the Chairman of the Civil Service  Commission.

[9]  For online copies of the paper, see www.somalilandtimes.net 

[10]  UNDOS (1999) Assessment of the Judiciary  System of Somaliland, UNDOS, Nairobi

[11]  This  was a badly drafted clause (questioned, understandably, by the petitioners). By  the time the Presidential Elections were due, only three parties remained  registered under the Political Parties Law as the three national parties  accepted under the Constitution. These three parties were the ones which came  top in the first nation-wide local elections held on 15 December 2002 - see  the Regulation of Political  Associations & Parties Law (as amended), Law no 14/2000.

[12]  The last democratic elections in Somalia was in 1969, when 123 seats  of parliament were contested by 1,002 candidates from no less than 62 parties

[13] Constitution Act, 1982, pt. 1:  (Canadian Charter of Rights and Freedoms)

[14]  The test used by the Canadian Supreme Court  in the case of  R v Oakes [1986] 1  S.C.R 103 was “First, the measures adopted must be carefully designed to achieve  the objective in question. They must not be arbitrary, unfair or based on  irrational considerations. In short, they must be rationally connected to the  objective. Second, the means, even if rationally connected to the objective in  this first sense, should impair as little as possible the right or freedom in  question. Third, there must be a proportionality between the effects of the  measures which are responsible for limiting the Charter right or freedom, and  the objective which has been identified as of sufficient  importance.”

[15]  See Lewis, I M (2002) A Modern History of  the Somali, James Curry, Oxford at page 205.

[16]  The Court was then presided by a lawyer of Somaliland origin, Judge Abdirahman Sheikh Ali  Said, who was nicknamed “Bur Hakaba” after the southern town which was the  subject of one of the election cases.

[17]  Samater  A. I (1988) Socialist Somalia Rhetoric & Reality, Zed Books, London.

[18]  The judgement were issued by Judge Haji N A  Noor Muhammad, for example on 2/07/1964 on cases relating elections in Hargeisa  (SNM party) and Odweine (SDU party). Judge Noor Muhammad  was the judge who was an expert on Somaliland laws.

[19]  This case resulted in the seat being won by  Haji Muhamad Hussain, the Leader of the opposition Somali Democratic Union (SDU) -  see Contini P (1969) The Somali Republic An Experiment in Legal  Integration, Frank Cass & Co Ltd, London, p. 86

[20]  Noor Muhammad, N.A, Judicial Review in Somali Republic, (1966) Journal  of African Law, Vol. 10. No. 1, p. 9 - 20

[21]  In 1960 to 69, the Constitutional Court was  never set up and was supposed to consist of not only all the judges of the  Supreme Court, but also two members appointed  for three years by the  President and two members elected for the same period by Parliament- see  Article 99  of the Constitution of the Somali Republic.  Of course, no such court was set up by the Dictator even though  Article 107 of his 1979 Constitution stated that such a court shall be composed  of the Supreme Court along with, an indeterminate, number of members from the  People’s Assembly appointed by the President.

[22]  The  Presidential and Local Council Elections Law (Law no:  20/2001).

[23]  This phrase, which appears in parenthesis in  the Somali text, is presumably used to emphasise that the job involves  calculating the sums only and not re-counting the actual  votes.

[24]  These have been the traditional grounds on  which administrative action in Somalia was challenged in the  1960s.

[25]  See for example the House of Lords decision  of R v Minister for the Civil Service ex p CCSU [1985] A C  374.

[26]  Per Lord Diplock in R v Minister  for the Civil Service ex p CCSU [1985] A C 374. This test is also known as  “Wednesbury unreasonableness” after the House of Lords case of  Associated Provincial Picture House v  Wednesbury Corporation[1948] 1 KB 223.

[27]  Widner J, Courts  and Democracy  in Post Conflict Transitions:  A social scientist’s perspective  on the African Case, the American Journal of International Law Vol.  95, p64