The revised version of law 14 would have given the incumbent an opportunity to terminate the three existing political parties ahead of the presidential election.
By Mohamed Ibrahim and Ulf Terlinden
Its remarkable successes notwithstanding, Somaliland’s democratization process has been marred by recurrent delays and the resultant disputes since its inception more than 20 years ago. Until just a few weeks ago, it looked as though for the first time, Somaliland would gear up to holding its presidential election — due in November 2022 — on time.
Following on the successful and widely praised local council and parliamentary elections of May 2021, the government of President Muse Bihi had consistently confirmed its readiness to hold the polls on schedule. A budgetary allocation for the election expenses was made in the 2022 national budget and the National Electoral Commission (NEC) was tasked with setting up a timeline. The government also reiterated its commitment to the international donor community in Nairobi and in return secured financial support for the election. However, these prospects were thrown into disarray from late December 2022, when the Somaliland Government started to reverse course and called for the “opening of political parties”.
Three-party limit and derailed party licensing cycle
Article 9 of the Somaliland Constitution limits the political parties to three. Arguably, this limits the freedom of association and the political space in the country. But based on the experience of the first post-independence elections, this limitation is intended to prevent a proliferation of political parties along (sub)clan lines and to ensure that they have a wide national base. Initially, three political parties were to be licensed out of the so-called “political associations” contesting local council elections every five years.
In 2011, a review of Law 14 — which governs the formation and selection of political parties — granted the three political parties a license of ten rather than five years. The logic behind the change was to provide greater continuity and to allow the three political parties to compete in two full electoral cycles (presidential, parliamentary, and local council elections) during the decade for which they would be licensed.
However, the law did not factor in the recurrent delays in Somaliland’s electoral timetable: The parties (Kulimye, Waddani, and UCID), licensed in December 2012, only took part in one presidential election in late 2017 (delayed from 2015) and their second local election in May 2021 (delayed from 2017). As a result, the next presidential election is due in November 2022, and the next local council elections are not due until 2026, while the licenses of the current parties expire on 26 December 2022.
A party election?
In 2021, the current administration proposed new amendments to Law 14 of 2011. These were designed to enable a special election — not to elect candidates into office, but to determine the three political parties to be registered for a ten-year period following the expiry of the current licenses. The changes also included a clause that was detrimental to the opposition: Existing political parties would become “transitional” political parties and be barred from competing in any presidential, parliamentary, or local council election once the process of registering new political associations and parties was initiated.
In effect, the revised version of the law would have given the incumbent an opportunity to terminate the three existing political parties ahead of the presidential election. This would have pulled into question who would be able to contest in the polls just months before they were due.
Parliament passed the proposed amendments in 2021, but the government changed its position and later vetoed the law on constitutional grounds. However, sections of the government and some members of parliament continued to push for the implementation of the amended law, arguing that the president failed to reject the bill within the required 21-day period and that it had therefore passed into law. The calls to apply this controversial version of Law 14 infuriated the opposition parties, which, above all, saw their chance of participating in the presidential election put into doubt.
The revised version of the law would have given the incumbent an opportunity to terminate the three existing political parties ahead of the presidential election.
The question of the legality of the 2021 amendments of Law 14 was taken to the courts. The Supreme Court, in its ruling of 16 January 2022, to some extent eased the political tensions as it affirmed the legality of the original Law 14 of 2011. It however nullified some clauses to enable the special election to select new political parties to take place. The ruling was seen to favor the opposition political parties because it no longer allowed the government to relegate the political parties to a “transitional” status at the onset of a fresh registration process.
Although the Court did not explicitly rule on the legality of the supposedly adopted new Law 14 of 2021, the confirmation of Law 14 of 2011 in principle gives the political parties — especially the opposition — a “new lease of life” to compete in the forthcoming presidential election.
Meanwhile, Law 14 of 2011 also stipulates that the process of registration of new political parties begins six months before the polling date, which is one month before the expiration of their licenses on 26 November 2022. Consequently, the registration process would begin in May 2022. This would effectively imply a “party election” just two weeks after the presidential election on 13 November 2022.
However, the announcement of a new “Political Associations Registration Committee” by President Bihi at the end of January underlines that the government continues to pursue a swift “opening” of the political parties. Pronouncements by the Ministry of Information leave no doubt that the intention remains to select new political parties ahead of the presidential election and to let the three new parties compete in the presidential election.
This would inevitably lead to the postponement of the presidential poll. But even if this was not the case, the absence of a clear impetus to prepare for the November presidential election and the prospect of having to hold two electoral processes (presidential poll and “party election”) in an extremely short sequence effectively jeopardize the presidential election timeline already.
Local commentators and legal and electoral experts strongly believe that only one electoral process is legally and technically possible within the remaining time frame until President Bihi’s term expires in November 2022 — and that is the presidential election. Furthermore, the NEC would need to start the voter registration exercise well in advance of the launch of the registration of political associations in June 2022 in order to be ready to carry out either poll (presidential or political party poll) by November 2022.
Underlying real politics
For all sides, but especially for the ruling party Kulmiye and the larger opposition party Waddani, the issue at stake concerns vital political and clan interests. The government’s sudden move to initiate the registration of new political associations has been attributed to recent changes in Somaliland’s domestic political dynamics. Among these is Kulmiye’s unexpectedly poor performance in the combined elections of May 2021, which local observers saw as an indication of both voters’ rejection of government policies and performance as well as deepening rifts within the clan coalition carrying the current government.
The situation was exacerbated when Kulmiye narrowly lost the highly contested election of the new Speaker of Parliament, effectively handing control over this key institution to the opposition. Both events are perceived to have led to a less favorable political atmosphere for the ruling party and its chances in the presidential election — a prospect that has obviously excited the opposition.
Against the background of their disappointment during the 2017 presidential election and in light of their performance in 2021, there is a strong belief among Waddani supporters that their candidate would be able to defeat the incumbent President Bihi in 2022. Therefore, the interpretation among Waddani supporters is that the push for the opening of political parties is a scheme to deny the Waddani candidate a chance of contesting and winning the presidency.
Whether these assumptions are true or not, it is safe to assume that a delay in the election would produce particularly strong opposition to the extension of the government’s term from Waddani quarters, raising the specter of violent confrontation particularly if the government eventually resorts to physical intimidation to counter-protests instead of exercising political tolerance and restraint.
The situation is particularly sensitive given the underlying clan constellation and the assumed formula of “power-sharing through rotation”, a concept that obviously does not align easily with electoral democracy. At the center are the three major Issaq sub-clans — Habar Awal, Habar Je’lo, and Habar Younis — whose capacity to work together and accommodate each other has been essential to securing Somaliland’s long-term stability.
There is a strong belief among Waddani supporters that their candidate would be able to defeat the incumbent President Bihi in 2022.
The election of Ahmed Sillanyo as president in 2010 was seen as a political accommodation of the Haber Je’lo, who believed that their “turn” to hold the highest office in the land had arrived. Similarly, there is an expectation that a Habar Younis will be elected in 2022 — as there was in 2017. The Waddani party is the primary political vehicle of the Habar Younis. A second failure of the party/clan to gain the presidency — especially if based on a rather “transparent” procedural maneuver and a suspected manipulation of the process — would put Somaliland’s democracy under severe stress.
Several scenarios are on the horizon. In the first one, the government continues to pursue the process of opening political parties immediately, with the intention of holding the contest over the licensing of political parties before the presidential election. President Bihi has already appointed the Political Party Registration Committee (RAC) to oversee the vetting of political associations. The resources to cover the process are available and it is expected to kick off officially in May 2022.
In this scenario, the government would hold the selection of political parties before November 2022, capitalizing on the strong public support for opening the political parties before the presidential election. The government would then probably seek to reach an agreement on the extension of its term and on the new election date with the emerging parties. If one or both opposition parties survive, they might split and weaken in the course of the process leading up to the parties’ election. If they falter and fail, the incumbent would be in the comfortable position of running against new, unfunded, and largely unprepared political competitors.
The second scenario is that the process falters and the government fails to hold the political parties contest before 13 November 2022 due to strong challenges against the government-led process from the opposition and other interested stakeholders. The opposition would likely accuse the government of circumventing and manipulating the election bodies, i.e. the RAC and NEC, and their mechanisms to achieve a certain outcome of the process. The opposition and some political aspirants are already referring to the newly appointed members of the RAC as “partisan” since four of the seven committee members are former members of the Kulmiye party.
Therefore, a protracted political deadlock would drag the process and would make the “need” for an extension of the government’s term by the Guurti, the Upper House of Parliament, a self-fulfilling prophecy. If unmitigated, Somaliland would face a political crisis similar to those that affected the country from 2008 to 2010 and between 2015 and 2017, following the expiry of the terms of President Rayale and President Sillanyo, respectively. Moreover, opposition leaders could threaten to establish a parallel government in defiance, as other opposition parties have threatened in the past.
If they falter and fail, the incumbent would be in the comfortable position of running against new, unfunded, and largely unprepared political competitors.
In the third scenario, the registration process falters and the government fails to hold the party elections before the presidential election. However, the government and the opposition parties accept that the Guurti extends not only the term of the government but also the licenses of the political parties, e.g. for a period of two years. Extending the parties’ licenses could lead the opposition to more easily accept the extension of the government’s term.
In fact, some argue that this could even be a preferred outcome of the crisis for some opposition leaders, as it would be more likely to make Muse Bihi a one-term president and would buy the opposition time and opportunity to build momentum. Not surprisingly, early indications are that forging such a “deal” would not be an easy undertaking, and the opposition parties’ ability to stand in the (delayed) presidential election would certainly be at the center of it. Needless to say, political actors outside the current parties who are preparing to register new associations would passionately oppose such a scenario.
Technically, there would also be the possibility of holding the two processes simultaneously, i.e. electing a new president and selecting the future political parties on the same day. However, this option is thought to carry the risk of creating a lot of confusion. Theoretically, it could even open up the possibility of a “president without a party”, if the elected president’s party does not succeed in the party election. Moreover, aspiring new political associations would most probably complain of being left out of the presidential competition and having nothing to fundraise or build momentum around until the next scheduled elections in 2026. Furthermore, this scenario would require the government to accept that the current political parties stand in the election.
The best hope of overcoming the current challenge to the preparation of elections and the perpetual electoral delays and crises would be through a return to consensus politics, the remedy to which Somaliland has traditionally turned in moments of fierce political contestation. In this instance, Somaliland’s political leaders should quickly come to their senses and reach a political compromise on the registration of the political parties. However slim the chances, there is still every opportunity to revive the electoral timeline and stage a peaceful presidential election.
Reform the party system?
Since its introduction in 2002, there have been calls for constitutional reform to deal with the restriction of political parties. Today some members of parliament believe the ongoing debate could be an opportunity for broad discussions on the restriction of political parties in order to come up with an enduring solution rather than having to deal with this problem every 10 years.
There is indeed a need to re-think the political party system beyond the immediate challenge at hand. Generally, observers continue to consider the restriction of political parties as undemocratic and in contradiction with the constitutional right to freedom of association. What was once conceived as a temporary measure to secure the gradual development of Somaliland’s democracy has in reality allowed three entities to form an oligopoly over the political space.
Moreover, the three-party limit increasingly fails to achieve its stated intention, namely to promote political parties with a broad national base. Instead, all three have strong and identifiable clan allegiances. This trend is likely to be further reinforced when the method of determining the “licensed” parties shifts to the special election that is currently envisaged. Taking candidates and the actual award of government offices out of the equation is likely to turn the exercise into a blunt de facto clan census, tying political actors together in identity-based segments rather than policy-based units that would at least nominally be fit to pursue national interests.
Somaliland’s political leaders should quickly come to their senses and reach a political compromise on the registration of the political parties.
Last but not least, the political parties and the Registration Committee have throughout been overly focused on the rights and the registration of the parties as entities, but little to no regard has been given to the democratic duties that come with these, especially in a context where only three parties are allowed to compete. As a result, the parties have, de facto, been owned by a handful of leaders with very little regard for internal democracy.
Therefore, regardless of how the current standoff plays out, it will be important for Somaliland to “re-invent” itself in this area, as it has done many times before. Political parties have been absolutely vital to the consensus-based state-building process in Somaliland. There is a need to develop ways in which they can continue to play this role without holding the political space “hostage” for the long run.
Somaliland rightly earned praise from both internal and external observers for holding peaceful and transparent parliamentary and local council elections on 31 May 2021. At the time, the international community and the Somaliland people commended the president and his administration for organizing the long overdue polls and financing 70 percent of the election operation.
If Somaliland’s political elites were to maintain the momentum and capitalize on these successes by forging a political consensus on the key challenges to holding the election, the country would be spared serious tensions and possibly even violent confrontation.
It would also capitalize on the unique opportunities of the recent spike in international interest in Somaliland and reinforce its distinct political trajectory from Somalia at a time when the latter is still struggling to stage even indirect elections a year after President Farmajo’s electoral term expired. Muse Bihi would also have secured his legacy as the first president to oversee a full and timely electoral cycle within the period of his mandate. Without a doubt, the world is craving for such “rare good news in the troubled Horn of Africa”.
By Mohamed Ibrahim and Ulf Terlinden
Ulf Terlinden is the Director of the Horn of Africa Unit, Heinrich Böll Stiftung, Nairobi.
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