Friday October 18, 2024
By Bashir M. Sheikh-Ali
Photo by Abukar Mohamed Muhudin/Anadolu Agency via Getty Images
In any federal system, the separation of powers is a cornerstone of effective governance. This principle ensures that the executive, legislative, and judicial branches operate independently, each with distinct roles and responsibilities. The separation of powers prevents the concentration of authority in one branch and fosters a system of checks and balances that promotes accountability and limits overreach. In a federal country like Somalia, where regional governments wield not insignificant powers, the need for a strict separation of powers is even more critical to maintain stability and prevent the overextension of the central government’s influence.
However, since the formation of the federal government in Somalia, this principle has been systematically undermined. Both the structure of the constitution and the actions of successive Somali federal governments have blurred the lines between the executive and legislative branches, leading to political chaos and conflicts of interest. Two key incidents—the recent attempted expulsion of the deputy prime minister from the upper house and the Farmaajo-era electoral law crisis—highlight the dysfunction that arises from this lack of separation of powers. Somalia's failure to adhere to its constitutional mandate for federalism over a parliamentary system is at the root of these issues, with far-reaching consequences for governance.[2]
Somalia’s Constitution and Separation of Powers
The Provisional Constitution of Somalia was designed to establish a federal system. Article 3 explicitly calls for the separation of powers, emphasizing the requirement for separate and independent branches of government. The purpose was to create a system that promotes good governance, accountability, and democracy. The constitution’s commitment to federalism was meant to ensure that power would not be concentrated in a single entity but rather distributed among various levels of government, thus providing a safeguard against potential autocratic tendencies.
Despite this clear emphasis on federalism, the constitution includes provisions that reflect elements of parliamentary systems, particularly in its treatment of the executive and legislative branches. One major inconsistency lies in Article 59, which permits members of parliament to simultaneously serve in the Council of Ministers. This provision undermines the very principles of separation of powers outlined in Article 3, as it allows the same individuals to exercise both legislative and executive functions, violating the core tenets of federalism and fostering conflicts of interest.
In parliamentary systems, such as that of the United Kingdom, the government is formed by the party that controls the majority in parliament, and the prime minister, who heads the executive, is also a member of parliament. This arrangement creates an inherent interdependence between the two branches. While this model works in the UK, where longstanding traditions and established checks exist, Somalia’s federal system demands a strict separation between the executive and legislative branches to ensure balanced governance. Federalism, by design, prioritizes the independence of each branch to prevent concentrated power, especially in a country like Somalia, which is deeply divided along regional and clan lines.
Federalism vs. Parliamentarianism: The Case for Separation
Somalia’s experience with the 4.5 power-sharing formula, which allocates political positions based on clan representation, highlights the country’s acute sensitivity to concentrated power. This formula was borne from a recognition of the need to prevent any one group from dominating the political landscape. Federalism, with its emphasis on decentralization and autonomy for regional governments, aligns with Somalia’s need for inclusive governance. In contrast, parliamentary systems, where the ruling party can control both the executive and legislative branches, present a risk of political domination by a single group, undermining the checks and balances that federalism is meant to provide.
The case of Belgium offers an illustrative contrast. Belgium combines federalism with a parliamentary system, but it ensures that ministers must resign from their parliamentary positions upon appointment. This legal safeguard preserves the functional separation of powers, preventing ministers from exercising undue influence over legislative processes. Belgium’s approach ensures that while parliament selects the chief executive and cabinet members, the principle of separation of powers is still respected, protecting the integrity of the federal system.
Somalia’s constitution, particularly Article 59, does not contain similar safeguards. Article 59 explicitly allows members of parliament to retain their seats even after assuming ministerial roles, creating dual allegiances and conflicts of interest. This provision is inconsistent with the Founding Principles of the constitution, as articulated in Article 3, which prioritizes federalism and the separation of powers. The failure to reconcile this inconsistency undermines Somalia’s federalist structure, weakening the checks and balances necessary for effective governance.
Moreover, Article 132 of the Provisional Constitution, which governs amendments, explicitly prohibits changes to the Founding Principles outlined in Article 3. These principles emphasize the establishment of a federal government but make no reference to a parliamentary system. This suggests that federalism, not parliamentary governance, is the constitutional cornerstone of Somalia’s governance. The permissive language of Article 59 regarding dual roles should be interpreted in light of these founding principles, with federalism taking precedence over the fusion of executive and legislative powers.
The Expulsion of the Deputy Prime Minister: A Case Study
The recent attempted expulsion of Somalia’s deputy prime minister from the upper house exemplifies the constitutional inconsistencies that arise from the lack of separation of powers. The deputy prime minister was expelled for missing four parliamentary sessions (the constitution stipulating that expulsion could occur after absence of only two sessions). The DPM’s response was very simple, he was attending to his executive duties. Although it would be tempting to view that the incidence merely highlights the arbitrary and politically motivated application of constitutional provisions, it raise the much broader issue of dual roles in Somalia’s governance.
The expulsion underscores the inherent conflict of interest that arises when parliamentarians also hold executive positions. The deputy prime minister’s dual role created a situation where a senior member of the executive government would play a major role in the legislative branch. That the expulsion was based on political expediency rather than constitutional principles is highlighted by the quick resolution without a court proceeding. The absence of a clear separation between the executive and legislative branches allowed political actors to manipulate the system, further eroding the integrity and legitimacy of Somalia’s governance.
The Farmaajo Electoral Law Crisis
The electoral law crisis during President Mohamed Abdullahi Mohamed’s (Farmaajo) administration between 2020 and 2021 provides another stark example of the dangers of allowing parliamentarians to serve in executive roles. The council of ministers approved a draft election law aimed at transitioning Somalia to a one-person-one-vote electoral system. However, when the law reached parliament, it was blocked with the help of parliamentarians who were also ministers, creating a direct conflict of interest. [3]
This incident demonstrates how the lack of separation of powers can lead to legislative inefficiency and political gridlock. By allowing ministers to serve as parliamentarians, Somalia’s governance structure enables officials to act in both capacities, leading to situations where executive members can block the very policies they are responsible for implementing. This dual-role arrangement not only undermined efforts to reform Somalia’s electoral system but also exposed the deep flaws in the country’s governance.
The Need for Reform: Ensuring the Supremacy of Federalism
For Somalia’s federal system to function effectively, it is essential to uphold the principles of separation of powers. The current practice of allowing parliamentarians to serve as ministers creates conflicts of interest, weakens legislative oversight, and dilutes the effectiveness of governance. Somalia must prioritize reforms that address these structural weaknesses and align with the federalist vision outlined in the constitution.
Somalia can draw valuable lessons from federal systems like Belgium, where ministers are required to resign from their parliamentary positions upon appointment.[4]This practice ensures that the executive and legislative branches remain separate, preventing the concentration of power and conflict of interest, and promoting accountability. South Africa, while not a federal system, follows a similar model, ensuring a clear division between legislative and executive roles.
Implementing similar reforms in Somalia would help restore the balance of power and reinforce the principles of federalism. Requiring ministers to resign from their parliamentary seats upon appointment would prevent the conflicts of interest that currently plague the system and strengthen the autonomy of each branch. Moreover, strengthening the judiciary’s role as a check on both the executive and legislative branches would further enhance accountability and promote good governance.
Conclusion
Somalia’s federal system is grounded in the principle of separation of powers, yet this principle has been consistently violated by allowing parliamentarians to hold executive roles. The dual roles of ministers and parliamentarians create conflicts of interest, weaken the independence of each branch, and undermine Somalia’s federal structure. Incidents like the attempted expulsion of the deputy prime minister and the electoral law crisis under Farmaajo illustrate the governance challenges that arise from this lack of separation.
To build a stable and functional federal system, Somalia must prioritize constitutional reforms that enforce the separation of powers. By requiring ministers to resign from their parliamentary positions upon appointment and strengthening the judiciary’s role in providing oversight, Somalia can create a system of checks and balances that promotes accountability, transparency, and good governance. These reforms are essential to preserving the integrity of Somalia’s federal system and ensuring a more stable and democratic future.
[1] The author is a Somali American lawyer based in Nairobi, Kenya. He can be reached at [email protected]. LinkedIn
[2] See Somalia’s Government Must Adhere to the Constitutional Structure, /op4/2022/july/186939/somalia_s_government_must_adhere_to_the_constitutional_structure.aspx for how Somalia’s federal government structure violates the constitution.
[3]See for example, Afyare Elmi, The Politics of the Electoral System in
Somalia: An Assessment, https://digitalcommons.macalester.edu/cgi/viewcontent.cgi?article=1241&context=bildhaan.
[4]Article 50 of Belgian Constitution specifically addresses the requirement for members of Parliament to resign from their parliamentary duties upon becoming ministers. The relevant part of the text is: “A member of each House who is appointed by the King as a Minister and who accepts this appointment immediately ceases to sit in the House and resumes their seat when the Government ends.”