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Sunday, May 17, 2015

Somaliland - The term extensions are wrong in law and wrong for democracy

(Medeshi)- Commentary By Ibrahim Hashi , Somalilandlaw.com- A call for an immediate Constitutional Court review and a statutory reform.

Overview
1. Even since 12 January 2002 when the House of Elders (the HoE) first relied on the ‘constitutional contingencies clauses’ giving the House power to extend the terms of office of the President/Vice-President and the House of Representatives (the HoR) in the event of specified exceptional insecurity or disasters causing delays in elections, the HoE has strayed far and wide from the letter and intent of these constitutional
provisions. In a presidential system of government where an elected president and elected houses of  parliament can only be replaced by similarly elected president or house1, the issue, in my view, has never been whether a short term extension should be made when and if the National Electoral Commission (NEC) declares that, for reasons it has identified, the date of election shall fall beyond the end of a term, but was how that can be done lawfully and with the agreement of all the stakeholders in a way that
ensures that the election must then be held at the earliest opportunity.
2. The two constitutional contingencies clauses first introduced by the 1997 Interim Constitution2 at a time when Somaliland just came out of a period of internal insecurity were meant to ensure temporary continuity of government in the event of the Presidential and House elections not being held on time because of the occurrence of specified serious insecurity or disaster events. Yet, despite none of these constitutionally specified events happening in Somaliland since the promulgation of these provisions, these two clauses have been used, before this week, to justify term extensions for – • Presidents/Vice-Presidents – 5 times (2002, 2003, 2008 and twice in 2009).
• House of Representatives – 5 times (2002, 2003, 2005, 2010 and 2013).
3. Furthermore, as these contingencies clauses (Arts. 42(3)3 , and 83(5)4 of the 2001 Constitution) relate only to presidential and HoR terms, the House of Elders’ own first  extension of term of office in 2003 was effected through a law passed by the two Houses and signed by the President - the correct way, in my view, to put into effect any ‘noncontingencies clauses’ election delays. Unfortunately since 2006 when the HoE’s term was extended for a further 4 years by a Presidential Decree backed by the decision of the HoE itself, the HoE has, in effect, extended its own term again in 2010 and 2013, so that its term was until, this week’s decision, due to end in mid 2016. These extensions have negated the people’s constitutional right5 to s/elect indirectly6 (or directly) the members of the HoE since the February 1997 National conference.
4. To further underline how the term extension system of Somaliland has strayed from the contingencies clauses, the HoE decided on 12 December 2007 that it has the power to extend also the term of office of the district local councils elected in December 2002 (for a 5 year term) and did so again in 2009 and a 2010 until the second nation-wide local district council’s elections were held in November 2012. There are no
constitutional or legal provisions that address such term extensions.
5. Overall, the constitutional contingencies clauses which were meant to be an insurance against the legitimacy of the elected branches of the government being questioned during these unusual specified events, have been so overused, or perhaps abused, during peaceful times that they invariably created the very legitimacy disputes they were supposed to forestall7. Almost all presidential term extensions and many of
the term extensions of the Houses were very hotly contested and the least contested were the local district council’s term extensions. This simply attests, in my view, to the Somalilanders’ strong desire for peace and for prompt conflict resolution which occasionally involves the acceptance of seemingly unconstitutional and unlawful solutions. It also explains why past and present opposition parties vehemently denounced the various HoE resolved term extensions as being unlawful and yet were often willing to accept them in the end. This pragmatic approach is, however,  counterproductive especially when it involves recurring political and legal problems.
Furthermore, the continual acceptance of unlawful procedures has a stunting effect on the development of constitutionalism, the rule of law, the constitutional separation of balance of powers and the democratic process of holding periodic timely elections.

6. There is, therefore, an urgent need for a statutory reform of the procedures for dealing with ‘non-contingencies’ clauses electoral delays necessitating term extensions (which do not require any amendment of the constitution) as soon as these current HoE term extensions are reviewed one way or another, including, I hope, a review by the
Constitutional Court which should be given a chance to revisit its infamous 2006 private
advisory opinion to then President about HoE term extensions .
The latest term extensions
7. On 25 April 2015, the President forwarded to the HoE a very short note enclosing a statement from the NEC advising that the NEC will be able to hold the Presidential and House of Representatives elections on 1 June 2016 – a date which fell beyond the expiry of the terms of the President and of the HoR. The president’s letter did not specify the Government’s recommended extension period for the HoR, as required by contingencies clause 42(3) if he was triggering its use, and his short letter simply stated that the
House ‘should undertake its constitutional duty’10.
8. On Monday 11 May 2015 the HoE decided:
a) To extend the term of office of the President/Vice-President whose elected first term of office expires on 27 July 201511 (and not, as widely publicised, on 26 June 2015 which is the 5th anniversary of his election day) to 27 June 2017 - a period of 1 year and 11 months.
b) To extend again for the third time the term of the House of Representatives (elected in 2005 for 5 years12) which is due to end on 26 June 2015 to 27 June 2017 - a period of 1 year and 11 months.
c) Implicit in these two above resolutions is that under Arts. 83(2) the election of the President/Vice President must be held a month before the end of the term of office; and under Art. 42(2), the President shall announce the HoR election a month before the HoR end of term, both of which are matters which the NEC takes note of when setting the dates of elections in the exercise of its statutory power under Art.8 of 2002 Election Law.13
d) To extend the term of House of Elders (selected in 1997 for a 6 year term) whose four times extended term was not even due to end until mid-2016, by an additional two years to 27 June 2018. The HoE decision states that its end of term will be ‘one year after’ (quoted verbatim) the end of the extended term of
the HoR. This means the Elders who do survive since their selection in early 1977 for a 6 year term will, by 2018, serve for over 21 years14.
e) To annul the date of the elections set by the NEC in its letter to the President dated 20 April 2015, as the earliest date it can hold the elections (which was 1 June 2016). According to the HoE, the NEC has misinterpreted Art. 815 of the 2001 Election Law which gives the NEC power to set the date of elections.
9. It was significant, this time, that the three political parties were of the view that any term extension should reflect the NEC determined date of polling (1 June 2016) which even took note of, as pointed by the NEC, an unusual, and, in my view, unnecessary requirement in the 2014 Voter Registration (Amendments & Additions) Law16 that the NEC must produce the final voter register list six months in advance of the polling date – a requirement that could still be repealed when this Law is revised, as happened in 2009 revisions of the then Voter Registration Law. It was also reported that the opposition political parties might have accepted a November 2016 polling date in one of their discussions with the HoE.
10. The HoE written reasoning of its decisions went as follows. The HoE -
a) assessed the circumstances existing at the eastern regions and throughout the
country;
b) noted the need for voter registration throughout the country so that the integrity of the whole of the land and of all the people is maintained as mandated by the Constitution;
c) believed that the NEC declaration of the polling date was inconsistent with the provisions of the constitution and the laws;
d) noted that the HoR Election Law whose one time use has lapsed and that no other law has so far been promulgated – this requires time, discussions, convincing each other, compromise in respect of the disputed allocation of seats, which is still an outstanding matter;
e) assessed the weather of the coastal districts and the optimum period for the holding of an election;
f) assessed fully the economic, social, and peace, in general, as well as the economic effects of the war in the Gulf of Aden on the Somaliland commerce and the need to avoid another postponement of the elections, recurring term extensions and non-completion of the outstanding matters;
g) has seen Arts. 42(3) 83(3)17 and 83(5) of the Constitution; and
h) considered and reached its decision on the basis of the above reasons.
Comments on the law
11. Looking at the stated reasons of the HoE written decision, the following points
arise:
a) The decision mentions in passing the constitutional contingencies clauses 42(3) and 83(5) which list the ‘conditions precedent’ for the exercise of the powers of term extension, but it does not state how exactly these clauses relied upon apply to these current cases. It is a principle of constitutional (and administrative) law that if a public body is exercising a power given to it under the Constitution or a law, it should state clearly how it has applied the relevant enabling provisions.
b) The contingencies clauses call for the identification and assessment of the nature and duration of the specified events justifying the reliance on these clauses. The HoE decision mentions briefly ‘the circumstances existing at the eastern regions and throughout the country’ and the mainly economic effects of the Gulf Aden War, both of which may have some security implications, but there was no evidence (and neither has the HoE argued) that any of these matters have actually led to the delays in the elections for the these contingencies clauses to come into play in this instance. Indeed the NEC letter which the President
forwarded to the HoR sets out the reasons for the delays and the date when the NEC could overcome these and hold the election and none of the reasons had anything to do with the contingencies clauses specified events.
c) There is nothing in the contingencies clauses which gives power to the HoE to assess and enquire into other election related matters that have nothing to do with the specified events, such as:
i. the need for voter registration throughout the country (11(b) above);
ii. the deficiencies of the HoR Election Law (11(d) above); and
iii. the coastal weather in the summer months (10(e) above).
d) In basing its whole decision on these ‘non-contingencies’ clauses matters, the HoE has therefore both misinterpreted the constitutional provisions and has brought into its decision making matters irrelevant to the exercise of the contingencies clauses powers. It has therefore acted beyond its powers (ultra vires) and hence unlawfully. These assessments of the ‘non-contingencies’ clauses electoral issues lay within the statutory powers of the NEC and not the HoE.
Read the complete document here
By Ibrahim Hashi Jama Editor: www.somalilandlaw.com