Constitutional Crisis in Somalia – Democratic, Free and Fair Elections?

ANALYSIS René Brosius 10 February 2021

The upcoming presidential elections in Somalia are dominated by the debate on free and fair elections, a debate that brought the country to the brink of civil war. While the states of Puntland, Jubbaland as well as the united opposition in the country insist that the president’s term has expired, supporters of the government argue that there cannot be a new president, even a caretaker president, without parliamentary elections.

Many people these days therefore refer to the country’s provisional constitution (vVS). This was enacted in 2012, after having been drafted with German support, among others, and therefore has many similarities to the Basic Law (Grundgesetz, GG). Reason enough to look at the exact regulations. At this point, the following should be noted: According to the agreement of 17 September 2020 in Dusamareb, due to the failure of free and fair elections, the indirect electoral system should be used again for this year’s round (see Somalia before the elections – From democratic election to dangerous selection process – africanlegalstudies.blog).

The Political Set-Up

On the constitution: According to Art. 55 (1) of the Constitution, Somalia has two chambers. The Federal Parliament (House of People) and the elected Federal Council (Upper House.) According to Art. 60 vVS, the term of office of the Federal Parliament is four years after the announcement of the election results. The Constitution does not contain a comparable provision for the Upper House, since the senators are elected in the respective elections in the federal states.

According to 89 para. 1 vVS, the President of the country is elected by both chambers and according to Art. 91 vVS in conjunction with Art. 96 vVS, the term of office of the President is four years from the date of his oath of office. If during the term of office of the President he is “absent”, “due to illness” or “for any other reason” unable to perform his official duties, the Speaker of the Parliament shall take over the official duties according to Art. 94 vVS. If the position of the President becomes completely vacant, the Speaker of Parliament shall act as President until the election of a new President, but for a maximum of 30 days, according to Art. 95 para. 1 vVS.

The provisional constitution of Somalia thus only contains rules for the case that a president is unable to carry out his official duties during his term of office. This is indicated by the fact that Art. 95 of the Constitution only speaks of the election of a new president, i.e. by the two chambers, and not of parliamentary elections. This would also not be achievable in just 30 days.

Based on the current president’s oath of office on 7 February 2017, his term of office ended at the end of 7 February 2021. The term of the federal parliament already ended on 27 December 2020, as it was already constituted in 2016. Somalia is thus faced with the situation that both the Federal Parliament and the President’s function no longer have the constitutional legitimacy to lead the country out of the crisis (see Somalia before the elections – From democratic election to dangerous selection process – africanlegalstudies.blog).  An interesting question for constitutionalists, including German constitutionalists.

Comparing the Grundgesetz with the Somali Constitution

Both the Grundgesetz and the Somali constitution do not recognise the state of expiry of democratic legitimacy. In each case, this would violate the principle of democracy, which is anchored in Article 1 (1) of the Somali Constitution and in Article 20 (I) and (II) of the Grundgesetz.

Legislation  is limited to a specific period of time, implying that elections must be held regularly and that the population can chose a different political direction. It is also part of the principle of democracy that a minority is given the chance to become the majority. The constitutional limits on terms of office take this into account. They are thus a direct outflow of the principle of democracy. Extending the terms of office or simply continuing to act without this electoral act is therefore in direct contradiction to the principle of democracy. This also applies in times of crisis. This is not contradicted by the fact that one could in principle change the duration of an electoral period, for example, from four to five years. However, the core area of democracy is affected when a current electoral period is extended. Parliaments in their concrete composition are only legitimised by the will of the electorate for the originally determined four years. By extending the current electoral period, the parliaments would “empower” themselves. The extension of the current electoral period is therefore not permissible, not even by way of constitutional amendment: it would constitute a self-empowerment contrary to the sovereignty of the people.

From a constitutional point of view, a solution cannot be to assign the Speaker of the Parliament the task of organising the election of a new President, analogous to the provisions of Art. 95 vVS. At least not without further consideration. The previous speaker, Mohamed Mursal Sheikh Abdurahman, refused to do this on the night of 7/8 February. The current parliament no longer has the legitimacy to make decisions. Neither laws, decrees nor even organisational issues. Consequently, the sessions of parliament that are still convened are also unconstitutional.

It must therefore be noted that the term of office of the president ended constitutionally at the end of 7 February 2021, as did the term of office of the Somali Federal Parliament. The only constitutionally legitimate and functioning chamber is currently the upper house. Although under “regular” conditions it has the role of co-electing the president, the constitution does not provide for any “emergency provision” for the upper house.

What happens next?

At best, a “back to square one” solution remains. This means that a new president and a new parliament must be legitimised on the same basis as was done in 2016/2017. This can only be achieved if there is no election campaign or intimidation with or by state resources. At its meeting on 9 February, the UN Security Council called for a political, non-violent solution. On the same evening, an offer of talks was sent out via Twitter to the federal states, the presidential candidates and representatives of civil society for 15 February. This could be the last attempt at a peaceful solution. However, the UN Security Council did not provide the wanted answer yesterday, on February 9th. It made no statement on the end of the president’s term of office. At the latest, if the new negotiations again fail to produce a result, the Security Council will have to take a stand.  Otherwise, the international community gives the impression that it is supporting a growing autocracy with taxpayers’ money from democratic countries.

René Brosius is a doctoral candidate at the Chair of African Legal Studies at the University of Bayreuth. He is primarily dealing with issues of law and economics in Somalia.