Somalia’s complicated election process ends – result: uncertainty

ANALYSIS 15 April 2022 René Brosius

Somalia’s complicated election process is ending – and remains complicated. After many delays, Prime Minister Mohamed Hussein Roble recently announced his intention to complete the electoral process by April 14, 2022. After a one-and-a-half-year delay, this would create the basis for electing the speakers of both chambers as well as a new president. It is probably the last chance to resolve the bitter conflict in the country in a peaceful manner. However, there is still a difficult road ahead.

Background

Since April 2, the Federal Election Commission has been issuing confirmation certificates to MPs who have been “designated” in accordance with the agreed election procedure.[1] About 170 certificates have already been issued. However, there are still 23 parliamentary seats missing for which the (selection) election has not even taken place yet, as well as 4 additional seats for which the Federal Election Commission certified significant procedural irregularities. In the Gedo region (Jubaland), the home of the incumbent president, for example, some elders refuse to cooperate with either the state or federal election commissions. Whether this is out of loyalty to the president or fear of the troops he has sent must be left open here. What is certain is that 16 seats remain to be determined there alone, and among other things, consideration is currently being given to having the election take place outside Somalia, in the Kenyan border region, beyond the government’s reach and under AMISOM’s supervision. The remaining unelected seats are in Hir Shabelle state. The reason for the delays there is primarily internal clan disputes. In view of the otherwise considerable progress in the elections, the international community as well as many Somali commentators are calling for no further delays in the electoral process and for the presidential elections to be held without the remaining MPs if necessary. But this strategy would rest on shaky constitutional foundations.

Constitutional complexities

According to Article 65 (1) of Somalia’s provisional constitution (SpC), the newly elected parliament must elect a speaker and two deputies at its first session. According to Article 65 (4) of the SpC, this is to be done by a simple majority in a secret ballot. The House of People, as the Somali federal parliament is called, has 275 members according to Article 64 (2) of the SpC. According to this, the simple majority would be 138 votes. In addition, there is the special provision of Article 64 (4) of the SpC, according to which former presidents become members of parliament for lifetime. This would mean that under the provisional constitution, at least one former president, namely Hassan Sheikh Mohamud (term 2012-2017), would fall under this provision. Since the provisional constitution only came into force in August 2012 and his predecessor Sharif Sheikh Ahmed was only president until August 2012, on the other hand, he is unlikely to fall under this rule. Although he left office under the current Constitution, he was not elected under it. For the incumbent president, Mohamed Abdullahi Mohamed (“Farmajo”), the provision should only apply after the election of a new president. The latter claims, contrary to the wording of Article 91 of the constitution, to be in office until the election of a new president anyway.[2] After that, however, he would not yet be a “former president” when his successor is elected and would not have a voice in the election of his successor. The provisional constitution speaks of “additional members” of Parliament in Article 64 (4), which would bring the total number of voting members to 276. The simple majority would thus be 139 votes.

According to Art. 74 of the SpC, the Speaker of the Upper House, a body which has 54 seats, also requires a simple majority of the members of the Upper House. This would therefore be 28 seats. All members are elected here. The elections for the speakers of the chambers are considered important indicators for the presidential election.

According to Art. 89 Para. 1 of the SpC, the election shall be held in a joint session of both Houses of Parliament. According to Art. 89 Para. 5b of the SpC, the candidate who receives 2/3 of the total votes of both Houses of Parliament in the first round, i.e. two-thirds of (276 + 54)*0.66 = 218 votes, shall be elected President. If this is not the case, the four candidates with the most votes advance to the second round. Again, the same quorum of 2/3 of all seats for the election of the president applies. Only in the third round, in which only the two candidates with the most votes in the second round are then admitted, is a simple majority of the votes (166) sufficient for election to the presidency in accordance with Art. 89 Para. 5d of the SpC.

There are no provisions in the constitution for the case that the election is not completed. In principle, however, Article 66 Para. 1 of the SpC assumes that Parliament will not convene for its first session until “the (final) election result” has been declared. Formally, the impossibility of declaring the final result could already stand in the way of the meeting. It is true that Article 89 (2) of the SpC states that at least 2/3 of the members of each chamber must be present for the election of the president, which could argue that even an incompletely elected parliament can effectively conduct presidential elections. However, the wording of Article 89 (5b) of the provisional constitution speaks against this. For one thing, it assumes the “total number of members,” i.e., a complete Parliament, and determines the necessary majorities based on the total number of members of the chambers. On the other hand, in the event of close election results, the MPs who have not yet been elected could be the deciding factor, for example, if a candidate falls just short of a 2/3 majority in the first round of voting or if it is a question of moving on to the next round. It makes a difference whether elected MPs decide not to appear for the presidential election or whether they have not yet been elected at all. It is therefore by no means the case that a quorum exists as soon as at least 2/3 of the members have been confirmed. The international community’s call on April 5, 2022, for the elections to be held even without the elections being fully completed can therefore be seen as an encouragement to break the constitution.

Of course, the argument that one must not allow oneself to be held hostage by a single region or certain political interests is also true. This is especially true when one considers the long efforts to determine over 90 percent of the seats. Moreover, the entire election procedure already deviates from the provisions of the Constitution. Thus, if the political powers were to agree on the election even without the seats still in dispute, the question would have to be clarified as to whether the missing mandates would be subtracted from the constitutionally required majorities or whether the constitutionally required majorities would remain. In the first case, a presidential candidate would need (276-23+54)*0.66= 203 votes in the first round (subject to a solution for the four disputed seats), but only 155 votes in the third round. However, it would not be quite that simple. For one thing, the missing mandates could have a significant impact on which candidate gets into the 2nd/3rd round of the presidential election, so it would be result-significant. Second, the new leaders of both houses and the president would suffer from a legitimacy problem. It is theoretically conceivable that the constitutional 2/3 majority of all seats would already be achieved in the first round, so that the missing seats would not be decisive. However, given the political situation in the country, this is rather unlikely.

Political powerplays

This is because these constitutional considerations come up against the great political tensions, considerable mistrust between the actors and the unclear balance of power in the country. Even though he has not yet officially announced his candidacy, the current and highly controversial president “Farmajo” (or an alternative candidate designated by him) is considered the one in the arena who must be defeated. He faces about 10-15 presidential candidates, including two of his direct predecessors and, most recently, the president of the state of Puntland. There are no clear favourites to achieve a 2/3 majority in the first round of voting. This is also due to the indifferent results of the previous elections. It is noteworthy that numerous army and intelligence service functionaries “acquired” parliamentary mandates, such as the notorious former intelligence service chief Fahad Yassin, who is considered one of the string pullers of the current presidency[3] and claims one of the 4 disputed seats. This “infiltration” of parliamentary space is apparently intended not only to infiltrate, control and influence parliamentary meetings, but there are repeated references to the associated immunity from prosecution for crimes committed in recent years. In some cases, however, prominent opposition politicians such as Mahad Salaad, Musa Sudi Yalahow and the presidential candidate Abdirahman Abdishakur Warsame were re-elected, and in some cases prominent representatives of the Nabad & Nolol (Peace & Life) government movement were not re-elected by them and were replaced by other candidates. In some regions, an unusually large number of very young MPs have been selected. Here we will see whether they are particularly easy or particularly difficult to control by their protégés.

The special election procedure did little harm to opposition members from large clans with strong support from their communities, whereas smaller clans often saw a very rude appropriation of mandates by government-financed groups. In some cases, elders with voting rights were bribed, pressured or simply replaced by members of the army or other clan members. As a result, a whole series of new and thus unpredictable MPs have emerged from this electoral process. In addition to the traditionally high proportion of votes for sale and the large number of wealthy candidates or candidates with financially strong foreign supporters, this makes it very difficult to assess the actual balance of power. There is much to suggest that there will be a broad distribution of votes in the first round and that none of the candidates will win 2/3 of the votes. Whether the alliances already agreed upon in advance will hold for the 2nd/3rd round is hard to predict. In any case, however, the discussion would begin about the influence of the missing mandates that might have helped one or the other into the next round. The continuation of the conflict would be pre-programmed.

Concluding remarks

Somalia’s complicated electoral process has thus entered its final, but no less complicated, phase. Just how close this process has brought the country to the brink of a new civil war[4] could be seen again recently in the brutal suicide attack against Amina Mohamed Abdi, a member of parliament who was critical to the government, on March 23, 2022. She was considered one of the country’s political hopefuls and a fighter against arbitrary power and corruption. She was blown up by a suicide bomber near her polling station in Beledweyne, symbolically on her way to re-election. At least 47 other people were killed in the blast, and many observers suspect a political background to the attack, although Al Shabab claimed responsibility. This would indicate a great deal of nervousness on the part of the incumbent presidency. Distrust within the political classes has increased further as a result, and it is foreseeable that these conflicts will not be over after the election. The category of “distrust” probably also includes increasing reports of imminent military action by the presidency (the April 12 date is repeatedly mentioned) to prevent the elections, as well as the warning announced by the intelligence service NISA on April 4, 2022, about imminent assassination attempts on the president and prime minister. Al Shabab itself has vehemently denied these reports. Observers therefore suspect that the presidency is pursuing a strategy of fear, aiming to prevent as many MPs as possible from attending crucial parliamentary sessions. However, it is unlikely that it will succeed in jeopardizing the quorum for the presidential election or in improving its own chances of winning the presidency.

The big losers in the long power struggle are above all the citizens of the country, who have been waiting for stable political conditions for 1.5 years now. The tense political situation has reduced the commitment of many of Somalia’s international partners to a humanitarian minimum. This is hampering important development projects in the country and ensuring that there is no adequate response to the worst drought in decades currently affecting the country.

René Brosius is currently a PhD student in law at the University of Bayreuth. He first studied Modern and Contemporary History, Sociology and Political Science at the Humboldt University to Berlin and later changed to Law at the same university.

[1] René Brosius, ‚Somalia before the elections – From democratic election to dangerous selection process‘ (africanlegalstudies.blog, 23 January 2021) https://africanlegalstudies.blog/2021/01/23/somalia-before-the-elections-from-democratic-election-to-dangerous-selection-process/ accessed 14 April 2022

[2] René Brosius, ‚Constitutional Crisis in Somalia – Democratic, Free and Fair Elections?‘ (africanlegalstudies.blog, 10 February 2021) https://africanlegalstudies.blog/2021/02/10/constitutional-crisis-in-somalia-democratic-free-and-fair-elections/ accessed 14 April 2022

[3] René Brosius, ‚House of Cards in Villa Somalia‘ (africanlegalstudies.blog, 17 September 2021) https://africanlegalstudies.blog/2021/09/17/house-of-cards-in-villa-somalia/ accessed 14 April 2022

[4] René Brosius, ‚Is Civil War Coming to Somalia?‘ (africanlegalstudies.blog, 28 April 2021) https://africanlegalstudies.blog/2021/04/28/is-civil-war-coming-to-somalia/ accessed 14 April 2022