The Extensions of the Terms of Office of the Houses of Parliament and the Constitution
Ibrahim Hashi Jama April 2003 ©
1. The current Houses (the Representatives and the Elders) were selected through their Beelaha (communities) at the Hargeisa Grand Conference of the Somaliland Communities which concluded in February 1977, and where the Interim Constitution was adopted. Under the Constitution, the usual term of office of the House of Representatives is 4 years (Article 42(1)) and that of the House of Elders is five years (Article 58(2)). Again under Article 42, the four year term of office of the Representatives is supposed to start from the “date when the Supreme Court declares the electoral results”. As this House was not elected, this has been interpreted as the date when the Representatives were first sworn into office, which was apparently in May 1997. As for the Elders, their five year term starts from the “date of its first meeting”, which apparently took place in May 1997. This meant that the end of the first terms of office of the two Houses was May 2002, in respect of the Representatives and May 2003, in the case of the Elders.
2. As we now know the term of office of the House of Representatives was extended by the House of Elders on 27th April 2002. The resolution which was based on Article 42(3) of the Constitution was approved with 53 vote for (and 3 abstaining) out of 57 members (including the Speaker) present. Article 42(3) of the Constitution states:
“If the election of the House of Representatives cannot be conducted because of dire circumstances, the outgoing House shall continue in office until the end of these circumstances and a new House is elected. Dire circumstances are: a wide war, internal instability, serious natural disasters, such as earthquakes, epidemic diseases, (and) serious famines; and shall be determined and resolved by the House of Elders on the proposal of the Council of Government.”
3. You will note that the Article allows the House of Elders to extend the term only if the conditions set out in the article prevent the election from taking place. Many persons and groups, including the Somaliland Forum and the political associations, stated forcefully that none of the conditions listed in the article existed in Somaliland in April last year, and that the real reasons why the elections could not take place related to the fact that the electoral laws were not completed and no proper arrangements were put in place to ensure that the elections were held on time. Indeed, as we know, the Presidential elections were also postponed earlier, when the same House extended the term of the President by one year in January 2002, and of course, again for further three months in January 2003. The House used the differently worded Article 83(5) of the Constitution which gives them power to extend the term of the President if it is not possible to hold elections because of “security considerations”. Similar objections were raised, as, again, it was clear that Somaliland was a peaceful country and that the condition precedent to the exercise of this power under Article 83 did not exist. Clearly, there is always the worry that if no extension of the presidential term of office is effected, and there is no election, a dangerous interregnum may be created, which will then inevitably lead to the worsening of the security of the land. But Article 83 talks about what makes the election impossible to hold, rather than what might happen if the President’s term is not extended.
4. The presidential elections are now set for 14 April 2003, but it was known for a long time that the parliamentary elections could not also be held in April, as the terms of office of both Houses are to expire soon. It is clear now that there are no “dire circumstances” currently existing in Somaliland to justify again the use by the House of Elders of Article 42(3) so as to extend once more the term of office of the House of Representatives. Somaliland is peaceful and has been engaged in a vigorous and lively political campaigning for the presidential elections. But it has been clear to everyone for a long time that the parliamentary elections cannot be held until the parliamentary elections laws are passed by both Houses and vexed issues such as allocation of seats, boundaries of constituencies, the practical arrangements and, for the Elders, the mode of election itself, have all been settled. The Somaliland Forum, in one of its open letters last year asked parliament, the Government and everyone else to address these issues so that we do not face another emergency, where, at the last minute, the House of Elders simply passes extension of term resolutions.
5. The problem is further compounded by the fact that as far as House of Elders is concerned, there are no constitutional provisions, whatsoever, which allow for the extension of its term. Apparently some members of the Elders argued that the Representatives can extend their term or that since the Representatives had their term extended by one year and the Elders are supposed to serve a year longer than the Representatives, then the Elders should, in turn, automatically get a similar extension. Neither of these propositions have any basis in law.
Lack of constitutional provision
6. The proponents of simple resolutions passed by the Elders which extend the terms of office of the Representatives and the President have often argued that there was no other choice as elections cannot be held. But if Articles 42 and 83 do not apply to specific situations, their use is tantamount to an abuse of the Constitution and will be seen by the public as “quick fix” solutions which by-pass the examination of real alternative solutions involving consultation with all stakeholders. It is not unusual for situations to arise, which do not have any clear answers in the Constitution. Democracy dictates that, in these instances, the civil society and, the political parties, traditional leaders are consulted so that we can arrive at an acceptable solution. In all the four occasions when this House of Elders have used its extension powers, it was clear many months in advance that it will not be possible that the elections will not be held before the expiry of the terms of office. As the Somaliland Forum has advised repeatedly, the Constitutional mechanism which could have been used was the amendment procedure under Article 126 of the Constitution. Of course this procedure requires the involvement of both Houses and takes at least two months to complete. But since the election problems were known well in advance, it would have been possible to effect simple amendments.
The recent extensions
7. So, why did we end up with further extensions at the end of March 2003 when on 18 January 2003, the House of Elders extended the President’s term of office, which was expiring on 23 February 2003, to 15 May 2003, which meant that the Presidential elections will be held a month before the end of the term (i.e 14 April)? The House knew fully well that the terms of office of both Houses were also coming to an end in May 2003 and that it was not, at all, feasible for parliamentary elections to take place in April. They were also fully aware that there were no dire circumstances existing at the country at that time, and that there was no constitutional mechanism for extending their term of office. Why then wait until the end of the March to play the trump card of term extension again? And why was the constitutional amendment mechanism not explored or used well before the approach of the expiry of both terms?
8. The answers of course lie in the realm of politics and the fact that constitutional amendments will require consensus as they can only be carried out with a qualified majority of two thirds of both Houses. From what I can make out, this time (unlike last year) no serious discussions about the end of the term of the Representatives have taken place, and various proposals relating to the Elders were discussed. In February 2003, the President passed to the House of Representative a short Bill proposing appointment by the President of a Committee that can select the new members of the House of Elders on the basis of the clan representation formula agreed upon at the 1997 Hargeisa Grand Conference. The Bill also included provisions which enable the President to announce, before the end of the term of the current House, the time table for selection of the new House. There was also a provision which initially linked the terms of office of both Houses, so that the Elders will benefit from any extension of the term of the Representatives, but, later, this was changed to one that granted the Representatives a new power to extend the term of the Elders and which was almost identical to that applying to the Representatives in Article 42(3) of the Constitution. The only difference now was that it will be the Representatives’ turn to play the magic “term extension” card. The Bill was studied by the House Legislation Committee, and was discussed by the House on more than one occasion. It proved to be clearly controversial, as many (including the Somaliland Forum) thought that there is something wrong with the President indirectly selecting the members of Legislative. Others who were not happy with allocation of the 82 seats amongst the communities in 1997 wanted to see some change in the formula, and still others felt that this will slow down our move from representative clan based democracy to a genuine popular democracy based on multi-party elections. I have not come across so far anyone putting across the obvious question as to the legal nature of this presidential proposal. Is it an ordinary bill which can be considered by both Houses under Articles 77 and 78 and which when passed and signed by the President will become law? If so, and its preamble suggests so, how could a law amend the provisions of the Constitution, which can only be altered through the special amendment procedure under Article 126 of the Constitution?
9. Be that as it may, the House of Representatives decided on 27 March 2003 that it will put to one side, for the moment, the new 21 clause Bill relating to the selection of the members of the House of Elders, but that it will approve a single clause (clause 19), which states as follows:
“If the indirect elections of the House of Elders can not take place because of dire circumstances or because of the practical arrangements, the House of Representatives, on receipt of the President’s reasoned proposals, shall consider how long the circumstances will be overcome and shall reach a resolution”
Of the 42 members attending the meeting of the Representatives, 41 voted for this proposal and 1 voted against. It was said in the debate that this one clause law will be the “key” to extend the term of the current House of Elders, but the debate on the remainder of the Bill was postponed. The House of Elders also, of course, approved the one clause (clause 19).
10. The House of Representatives also considered another Presidential proposal, which, this time, appeared in the form of a Presidential Decree (Decree No: 105 of 27 March 2003) , and which stated the following:
“The President of the Republic of Somaliland
Having seen Article 90, clause 1 of the Somaliland Constitution;
Considering the provisions of the “law” on the indirect elections of the House of Elders;
Recognising that the planned budget cannot extend to both the Presidential and the parliamentary elections;
Aware of the fast approaching end of the term of office of the House of Elders;
Having seen the Resolutions of both Houses approving Clause 19;
Proposes that term of office of Elders must always expire one year after that of the House of the Representatives and that of the President”.
It was reported that this proposal was approved by the House of Representatives on a vote of 51 votes for with none against and no abstentions.
12. So what we have here are two matters which add to the Constitutional provisions relating to the House of Elders. However you put it, these are, in effect amendments to the Constitution. Firstly, for the first time, the Representatives have a power to extend the term of the House of Elders and secondly an automatic extension formula will apply whenever the Elders extend either the term of office of the Representatives or that of the President. Of course this automatic extension, in effect, gives the Elders power to extend their own term!
Playing the trump card
11. When the President addressed both Houses on 30 March 2003, the scene was therefore set for the exercise of both Houses of their extension powers. In his “state of the nation” speech, the President said this about the parliamentary elections:
“I urge the Houses of parliament to finalise the laws relating to how your elections are to take place. I must inform you that it will not be possible to hold your elections because of the time constraints as your end of term coincides with that of the presidency, because of the finances which do not allow us to hold them this year and because the essential laws still need to completed.”
12. I have not yet seen the actual resolutions passed by both Houses, but it has been reported that, shortly after the President’s speech, the House of Elders, on a simple majority decision, approved, presumably under Article 42(3) of the Constitution that the term of office of the current House of Representatives shall be extended for two years. It is not clear how the House defined the dire circumstances facing Somaliland, at the moment, but it is likely that their reasoning will be the same as that given last April, when they made the first extension. One thing the House has not done though this time which it did last year was consult widely with the public, the political parties and the civil society prior to arriving at this decision. Constitutional law develops incrementally, and it is generally accepted that if a public body acts in a way which was contrary to the legitimate expectations, it can be challenged under the law. Political parties and civil society can, in my view, argue that after last year, there was a legitimate expectation that the House will consult before making such a monumental decision which has a considerable impact on the constitution and the rights of all Somalilanders.
13. The other implication of the Elders decision was that it automatically gives them a three year extension on the back of the recently approved two “single Article” laws passed by both Houses and relating to the House of Elders.
14. I would criticise the decision of the Elders to use Article 42(3) of the Constitution for the same reasons in which others have advanced last year when a similar extension was announced. The reasons why the elections of the House of Representatives cannot be held (again) was amply set out by the President in his state of union speech and relate to the logistics of holding an election. None of those reasons can be described as falling within the dire circumstances set out in Article 42(3). Secondly, I believe the House of Elders has failed to fulfil the expectation to consult the civil society and the political parties and hence their decision is, on this reason alone, also subject to challenge. Thirdly, knowing fully well that this decision will also extend their own term, they still failed to consult about how long the circumstances which made the election impossible to hold can be overcome. For example, Why two years and not one year?
15. As for the two laws relating to the Elders term of office, I cannot see how they accord with the clear provisions of the Constitution relating to the length of the term of office of the House of Elders. There is nothing in the Constitution which allows the President or the House of Representatives to extend the term of office of the House of Elders. Also the fact that there is a lacuna in the Constitution does not mean that the President and the Representatives could take upon themselves to fill it without using the proper procedure for amending the Constitution. The fact that they have decided not to follow the amendment route is all the more remarkable when you notice that, unlike many constitutions, the amending mechanism is not a referendum, but is dependent on only a qualified vote of the two Houses themselves and a two month cooling off period to ensure that amendments are thought about carefully. In a budding democracy like ours, the two Houses ought to have welcomed a wider debate on a matter which was so important as which actually benefits them individually.
16. My own assessment is that the Supreme Court, if asked, would have more than likely held the extension of the term of the House of Representatives lawful, but it would have to perform a feat of legal gymnastics to approve of the two laws relating to the House of Elders. There is of course the fear that the Court may be influenced by the fact that if it strikes down these two laws and the term of office of the Elders has by then expired, one will end up with a difficult uncharted constitutional conundrum, and here therefore we get into the realm of politics and not law. These term extensions are becoming a feature of Somaliland political life, but whilst they may well the most practical answers to the problems of not being able to hold elections on time, the unfortunate message they send to the populace is that the Parliament and the Government are simply taking care of themselves.