A well-functioning democracy requires an independent and impartial Constitutional Court to resolve constitutional disputes that may arise in a peaceful manner. In this article, Mohamed Farah examines the challenges of establishing a functional Constitutional Court in Somaliland.
Law is respected and supported when it is treated as the shield of innocence and the impartial guardian of every civil liberty—- if the law is dishonestly administered, the salt has lost its flavor, if it is weakly or fitfully enforced, the guarantees of order fail—if the lamp of justice goes out in the darkness, how great is the darkness. Lord James Bryce
By Mohamed Farah Hersi
The Academy for Peace and Development
Introduction
A constitution enjoys a special place in the life of any nation. It is the supreme and fundamental law that sets out the state’s basic structure, including the exercise of political power and the relationship between political entities and between the state and the people.
As the former Chief Justice of South Africa, Justice Ismail Mohamed, once observed, “a constitution is not simply a statute which mechanically defines the structures of the government and the relations between the government and the governed, but it is a mirror reflecting the national soul, the identification of the ideals and aspiration of a nation; the articulation of the values binding its people and disciplining its governments.”[1]
This notion is reflected in many constitutions adopted in Africa in the late in the 1990s. Uganda’s constitution, for example, is intended to lay the foundations for a better future by establishing a particular socio-economic and political order.[2] A constitution is the supreme document of the land which enhances and protects a society’s values and principles. Effective and capable governance requires a well-designed constitution, and a viable and durable constitution is vital for making democratic institutions effective.
Theoretically, a written constitution needs a body which promotes, develops and strengthens the values and principles enshrined in it. This is the role of constitutional courts – to promote and protect constitutional principles and ensure compliance with them by the other constitutional entities. It is also a place where inter-institutional conflicts can be resolved.
The Constitutional Court of Somaliland has an important role in promoting democratic governance and protecting constitutional principles. This paper analyses the institutional capacity of the Constitutional Court of Somaliland. The paper highlights the functions, powers, and mandates of the Court, assesses its effectiveness, and examines its challenges and achievements since it was created.
Institutionalization of the Constitutional Court of Somaliland
John Locke observes in his book, ‘Two Treatise of Government’, that there was a system of governance in Africa before European colonization.[3] The Somali people, for instance, had a system of governance very different from modern democratic governance. There was no state, no unified and centralized political authority and no written constitution guaranteeing the fundamental rights and freedoms of people.
During the colonial epoch, when Somaliland became a Protectorate of Britain, it was governed by the queen’s representative – the Governor – who exercised all legislative and executive powers.[4]
In 1946 an Advisory Council was established consisting of 48 members selected by the governor from different sectors of the community. But the Council had no legislative and executive power and it was not until 1955 that a Legislative Council was formed. Composed of 15 members and presided over by the governor, Somalis for the first time were given some legislative authority.
However, there was no constitutional court or other relevant institution to protect the rights and freedoms of the citizens. The independent Somali Republic was established in 1960 as a parliamentary democracy, in which there was a clear division of powers between the executive, legislative and judicial arms of government. When the military government of Mohamed Siyad Barre took power in 1969 this division was dissolved, leaving no such separation of state powers.
The separation of these powers was partially restored when Somaliland was created as an independent state in 1991 and a new political system with an executive president and bicameral parliament was established. But, it was not until 1997 that a draft constitution was agreed and finally endorsed by a plebiscite in 2001. The ratified constitution defines the powers of the state and established a Constitutional Court, whose role is to protect, develop, and promote the constitution and constitutional justice.
Structural Problems of the Supreme and Constitutional Court
Article 101 of the Somaliland constitution provides that: “The Supreme Court is the highest organ of the judiciary and is also at the same time the Constitutional Court.” Article 14 of the Law of Organization of Judiciary also states that the venue of the Supreme and Constitutional courts is the same and that the Chief Justice is also the Chief Justice of the Constitutional Court. The Supreme Court of Somaliland, therefore, has dual legal and constitutional functions.
This system is modeled on the United States constitutional system. In most other African constitutions, the Supreme Court and the Constitutional Court are separate institutions. The main objective of separating the courts is to ensure an independent, neutral and impartial justice system. In my opinion, it would be preferable to separate the two courts. There are several reasons why I favor the separation of the two courts.
First, the constitutional court is a political institution with the sole obligation to monitor and receive individual and other communications from the public. In my opinion, the Constitutional Court is more important than the Supreme Court, because it has the mandate to decide on cases concerning the constitution and the constitutionality of any decision, acts, and laws promulgated by the legislative and executive. It also plays a vital role in protecting the rule of law
Second, in most African constitutions the Chief Justice is nominated by the President and approved by the parliament. The Somaliland constitution is the same, with the president granted additional powers of nomination and removal of the President and judges of both the Supreme and Constitutional courts. Article 105 states:
“The president of the Republic shall, in consultation with the judicial committee, appoint the President and judges of the Supreme Court and the Constitutional Court by taking into consideration the level of their education, professional experience, and good behavior. The appointment of the president of the Supreme Court shall be approved by the two houses in a joint session that is to be held during a period that is not more than three months from the in which the appointment has been announced.”[5]
In my opinion, the procedures of nomination and approval, the tenure of office, and the process of removal from the office of judges to the Supreme and Constitutional courts should be different to ensure greater independence of the judiciary from the other two branches of the state, specifically the executive.
It is, therefore, different from the other courts in terms of their nomination procedure, Justice Mohamed Omar Geelle stated in an interview that the opposition and other individuals do not have trust in the constitutional court because the same judge who decides a civil and criminal case is the same judge who sits as a constitutional judge. The dual functions undermine the independence and integrity of the constitutional court.[6]
Third, the dual functions restrict the independence of any decisions by the court pertaining to constitutional matters. Finally, the US system of constitutional dispute settlement is culturally rooted in the US and is not necessarily compatible with judicial practice in Somaliland.
Challenges to the Independence of the Constitutional Court
It has been argued by the opposition parties and others in Somaliland that the Supreme Court does not have sufficient independence to determine cases impartially. They argue that the court has simply been serving the executive, who has powers of nomination and removal. According to the registry of the Constitutional court, since it was formed the court has only ruled on three cases, an indication that people do not have sufficient trust to submit a petition to it. Various factors impede the independence, neutrality and impartiality of the constitutional court:
- Constitutional challenges: One of the main impediments to having an independent court is the constitution itself, which gives effective powers of nomination and removal of justices to the President. The President nominates and the House of Representatives approves. In reality, parliament’s opinion is always underestimated or ignored. In my view, those who drafted the constitution should have given the justices more independence, by giving powers of removal to a Judicial Commission and the House of Representatives, and taking it out of the hands of the President.
- Financial challenges: The court has no separate budget and is subject to the administration of the Ministry of Justice.
Retirement and benefits: According to one judge of the Constitutional Court, a lack of provision for “retirement and benefits is one of the sources of the lack of independence”. It is evident that the lack of such benefits plays a major role in the administration of justice and the independence of the court.
Functions of the Constitutional Court
The Somaliland constitution, unlike others, does not describe the functions of the Constitutional Court. Article 101, for example, which establishes the Constitutional Court as part of the Supreme Court does not explain its distinct functions. These had to be defined later by an act of parliament in the 2003 Law of the Organization of Judiciary,[7] which describes the hierarchy, powers and functions of all the courts (article 15). The role of the Constitutional Court includes:
- Hearing and judging decisions and laws that are contrary to the constitution
- Constitutional interpretation
- Temporarily suspending laws which are not in compliance with the constitution
The Constitutional Court and House of Elders
The Somaliland constitution is unique in Africa in the way that it merges traditional and modern governance. Scholars have broadly supported the culturally rooted, internally driven bottom-up approach of state building in Somaliland, arguing that it has brought peace and stability and a well-functioning democratic system of government.[8]
In contrast, an internationally-driven, top-down approach to state building has demonstrably failed in south-central Somalia. However, while recognizing the importance of tradition, neither the constitution nor the 2003 Law of the Organization of Judiciary is clear on how the powers of modern and traditional institutions are differentiated.
Tensions over the postponed elections in 2009 tested the marriage between tradition and modernity in Somaliland, a test whose outcome is, I would argue, crucial to the rest of Africa. The fusion of traditional and modern governance is a model that is seen to have served Somaliland well before transitioning to a constitutionally-based multi-party democratic system of government.
It continued to work when the new political system was adopted in 2002, but signs of incompatibility between elements of traditional and modern governance became increasingly evident, causing mistrust between the political parties, and tragic deaths in the violence surrounding the electoral crisis in 2009.
The Constitutional Court, which has been established in the constitution as a court of last solution in any constitutional crisis failed to fulfill this role effectively during the electoral crisis. This role, therefore, remains unrealized and the procedures untested and unexplored. Neither the public nor the political parties, who have a right to file a constitutional petition if they feel their rights have been violated or transgressed, have tested the effectiveness and the independence of the court.
Some may have concluded that because the Chief Justice has been nominated by the president he works for the government. But it is the House of Representatives that approves and appoints the Chief Justice and justices of the Constitutional Court. Theoretically, therefore, the system has checks and balances, but doubts remain about its effectiveness.
Law No. 24 of the 2003 Law of the Organization of Judiciary gives the Constitutional Court the role to assess the constitutionality of acts issued by the parliament and decisions made by the government, determining whether or not they are contrary to the purpose and the spirit of the constitution. When the National Electoral Commission (NEC) suspended the voter registration list prior to the scheduled election in 2009, questions were raised about the legality of those actions.
In this case, the question for the Constitutional Court should have been: “does the NEC have the authority to suspend the voter registration list which had been legalized by an act of parliament Law No: 27 of 2008?” However, no case was filed before the Court because, according to the opposition parties, the Court lacked independence.
While one can agree that the Court lacked the minimum required independence and institutional capacity to determine such a case, the consequence was that a modern system was seen to fail and tradition was resorted to. The Upper House of Elders was therefore left to make a judgment on the actions of the NEC.
The role played by the Guurti in resolving constitutional disputes does raise questions over the need for a Constitutional Court in Somaliland. However, the Guurti has its own problems of capacity and independence. The close relationship between the Guurti and the government has consistently raised questions over the independence of judgments by the Upper House. Clarifying the roles and powers of the Constitutional Court and the House of Elders will be important for the future of Somaliland.
An independent, effective and impartial Constitutional Court is critical to a functioning democracy, having the ultimate power to determine and rule on constitutional matters. Since the beginning of the democratization process in Somaliland, neither the Somaliland government nor the international community have given attention to the importance of establishing an effective and independent Constitutional Court.
The crisis in 2009 exposed the flaw with this approach. In order to prevent and manage such problems in the future there needs to be a functioning and independent Constitutional Court.
Conclusion
Many of the African governments that emerged after independence became undemocratic, over-centralized, and authoritarian. Predictably political monopolies led to corruption, nepotism, and abuses of power. In places, repressive regimes and one-party systems emerged. Constitutions were amended so they could fit to the new reality.
In Somalia, the abuse of power under the regime of Mohamed Siyad Barre was one reason why people in Somaliland withdrew from the Union to re-establish a democratic state that protects the rights and freedoms of its citizens. This was laid out in the constitution adopted in 2001.
The political transformations since then have been positive and difficult. As explained in this paper, to promote the rule of law and constitutionalism in Somaliland, there needs to be an effective and independent Constitutional Court. This exists, but the problem lies in the implementation and enforcement of the values and principles enshrined in the constitution.
The lack of published annual reports by either the Supreme Court or the Constitutional Court makes it difficult to know what they have achieved. Neither the public nor the political parties have made use of it and none of the disputes between the House of Representatives and the government have been referred to the Court for resolution. The main reason for this is the lack of trust in the independence of the institution from government influence.
In the absence of an effective court, constitutional crises have been resolved through traditional conflict management mechanisms. The challenges are wide range and multidimensional, ranging from financial to political, and can only be resolved through a comprehensive constitutional review.
NOTES
[1] John Hatcherard, Muna Ndulo and Peter Slinn (2004) Comparative constitutionalism and good governance in the commonwealth: an eastern and southern African perspective. Cambridge University Press. pp 23
[2] K.C Wheare (1966), Modern Constitutions, London: Sweet and Maxwell, pp.33-4
[3] Laslett, Peter (ed.) (1960), Locke’s Two Treatises of Government, Cambridge: Cambridge University Press.
[4] Accessed on 23 July 2009 (www.somalilandlaw.com)
[5] The Law of Organization of Judiciary under article 11 provides the same process.
[6] Interview held at the constitutional court of Somaliland with Justice Mohamed Geelle
[7] Law No: 21 of 2003
[8] See Iqbal Jhazby (13 Nov 2009) Somaliland: an African struggle for nationhood and international recognition pp 67
About the author
Mohamed Farah Hersi is a lawyer and human rights researcher. He holds an LL.B (Bachelor of Laws) from the University of Hargeisa in Somaliland, an LL.M (Master of Laws) from the University of Pretoria in South Africa, and is currently a researcher at the Academy for Peace and Development
