PRESENTATION TO THE INDEPENDENT FEDERAL CONSTITUTIONAL COMMISSION OF SOMALIA (IFCC) NAIVASHA, KENYA

DISCUSSION PAPER ON THE SOMALI TRANSITIONAL FEDERAL CHARTER

By Ahmed Issack Hassan (LLB) Advocate, High Court of Kenya

Introduction:

Scholars of Constitutional Law in Africa such as Prof. Okoth Ogendo, of the University of Nairobi have sounded the cautionary note that constitution making is a continuation of politics by other means. The process of making a Constitution can never be divorced from the politics of the time. This is especially the case when the making of the Constitution is being done in peace – time.

After more than a decade of civil war and the successful conclusion of the Somali National Reconciliation Conference in 2004 in Nairobi, Kenya, the Transitional Federal Charter of Somalia represents the Nation’s first concrete steps towards re-establishing the grund norm – the basic foundation of the Law and civil authority which had been destroyed before.

The transient character of the Charter cannot be overlooked. The Charter is not an end in itself but a means to an end – which is the implementation of the Charter provisions through the enactment of relevant legislations and setting up the institutions necessary to realize the objectives of the Charter.

My Relevant Credentials:

I am an Advocate of the High Court of Kenya practicing Law in Nairobi for over Fourteen (14) years now. I hold an LLB degree from the University of Nairobi (1992) and a Postgraduate Diploma in Legal studies from the Kenya School of Law (1994). I am also a certified Public Secretary of Kenya.

I was among the twenty-nine Commissioners of the Constitution of Kenya Review Commission (CKRC), which was appointed in 2000 to review the Constitution of Kenya. I served in this Commission for five years and gained valuable lessons and experience in the constitution making process.

I got involved in the Somali Peace process and constitution making as early as 1994 when I was engaged by a Somali think tank based in Nairobi called Somali Intellectuals Forum as a consultant to help in preparing a draft Constitution for a federal Republic of Somalia. This draft was among the many working documents that were considered during the Somali National Reconciliation Conference held in Eldoret and Mbagathi (Nairobi).

I have severally given legal advice and consultations to the Government and Members of the Somali Civil Society on the Charter. I have also been retained by the Transitional Federal Government to continue to act as a Lawyer for the Somali Republic in pending legal proceedings in the High Court of Kenya in Nairobi concerning the property of the Embassy in Nairobi.

The Objective of the Presentation

This paper was presented to the Somali Parliamentarians in May 2006 during a workshop on federalism in Baidoa. For the purpose of the presentation for the IFCC, the main focus will be on the topic on devolution of powers from page 11 to 13. However other aspects of the paper will equally require an examination by the Commission. The Presentation is both in English and Somali.

Supremacy of the Transitional Federal Charter

The Constitution of any country must always provide for what is called “the Supremacy clause” to ensure that all the laws of the State, whether Federal or Unitary, must conform to the Constitution. The Constitution is the basic Law of the land, which lays the foundation upon which other Laws will be constructed upon. It is also called the Organic Law.

A corollary to this Supremacy clause is a provision for the resolution of disputes concerning the interpretation or application of the Constitution or any part thereof. This duty is usually reserved for the High Court or the Appellate/Supreme Court depending on the Federal or Unitary character of the State. Sometimes, the Constitution provides for a Constitutional Court to be a separate special Court for this purpose e.g. in South Africa or Germany.

Closely linked to the supremacy of the Constitution is the concept of the Sovereignty of the People. This principle is said to be pre-eminent and pre-exists the Constitution, as it is the power that resides in the People. The source of all power is the People. The exercise of this power is best manifested in the People’s votes in elections to the Legislative and Representative bodies, in Constituent Assemblies or Referendums.

The Transitional Federal Charter, in providing Islam as the State religion in Article 8(1), appears to subject the Supremacy of the Constitution and its application to the fundamentals of the Islamic religion as contained in the Holy Quran and the Sunnah of the Prophet (S.A.W). It will appear that notwithstanding the supremacy of the Constitution, any Law, which is also inconsistent with the tenets of Islam, will be null and void ab initio.

This clause on the centrality of the Islamic religion is not unique to the Charter. It is a common feature in other Constitutions of Muslim States, including those that don’t apply Islamic Sharia in toto.

Citizenship

The provisions on citizenship in the Charter provide the basic definition of the population that constitutes the State. Citizenship is said to be obtained by birth, by registration (through marriage) or by naturalization (by residence).

Given the large number of Somalis in the Diaspora who have been living outside Somalia as refugees and nationals of other countries, the provisions on citizenship in the Charter become critical in identifying the manner of becoming a citizen in the Somali State.
Article 10(4) of the Charter, which deals with dual citizenship does not specify the kind of citizen that is entitled to the right of dual citizenship. Most modern Constitutions in Africa now provide for some conditions to dual nationality e.g. restricting it only to citizens by birth or denying it to those holding Constitutional offices or elected ones.

Federal Character

Any attempt to ensure fair and equitable distribution of resources in a Federal State must respect the diversity of the people and the regions forming the State.

The distribution of appointments to public and Constitutional offices in a Federal State cannot just be based on qualifications alone but the larger goal of inclusivity to achieve a higher level of legitimacy and popular acceptance.

The distribution and allocation must also respect gender equity and the participation of the youth, the disabled and other marginalized and special interest groups.

Protection of The Fundamental Rights and Freedoms of the people

Most independence constitutions in Africa, especially those based on the West minister model, provide for the basic human rights and freedoms as contained in the 1948 Universal Declaration of Human Rights. These Rights and Freedoms concern the civil and political rights of the people. These are clearly reflected in the 1960 Somali Constitution and in Chapter Five (5) of the Transitional Charter.

However, with the advancement in the development of the scope of these rights, they have now been extended to cover economic, social and cultural rights such as the rights to basic rights of food, water, shelter, health, education and community and cultural rights. Most of the modern constitutions enacted in African countries now contain these rights. Others also contain what is called the solidarity rights that deal with sustainable development.

The System of Government

The most important decision in constitution making and the conventional function of constitutions is to design the power map of the state, i.e., the system of government. The map determines the composition and powers of the State organs, the manner in which they exercise those powers, particularly as relates to governance, and allocation of resources and opportunities within the State. Government systems are determined by the powers and functions of principal organs of State, the structures of these organs and the relationship between them. The principal organs are the Legislative, the Executive and the Judiciary.

The doctrine of separation of powers means that there should be a demarcation in the functions and powers of the three organs, so that no organ has excessive powers and there are checks and balances between them to ensure accountable government free of overlaps and bureaucratic conflicts and inefficiency.

The Parliament or the Legislature

Legislatures may be divided into two broad types: unicameral and bicameral.
Unicameral legislatures consist of one chamber, while bicameral ones are composed of two. In the latter case, the composition and functions of the upper chamber differs from country to country.

In federal systems, such as India, Nigeria and the United States, the bicameral legislatures represent regions. In Unitary political systems, such as Kenya, Uganda and Eriteria, unicameral legislatures have been adopted. Bicameral legislatures represent diverse interests, facilitating a more deliberative approach to legislation and thus a higher quality of laws. They also provide enhanced oversight and control over the Executive. In contrast, unicameral legislatures may be faster in decision-making, cost less in terms of resource and time and be more effective in representing homogenous and less populous nations.

Legislatures perform three main functions, namely:

Representation;
Law-making; and
Supervision of government conduct.

Parliament has the power to make standing orders of procedure for the orderly conduct of its business and to establish committees to facilitate its word.

Whether written or unwritten, all Constitutions have provisions for some form of legislature. What would be useful is to survey the major types of legislatures that most constitutions provide for. Unicameral legislatures are common in jurisdictions based on a unitary system of government, whether or not exercise of power is purely parliamentary or a hybrid between a parliamentary and presidential system. Many African constitutions, including those of Uganda, Tanzania, Zambia, Botswana, Malawi, Zimbabwe and Ghana are essentially unicameral. Some of these countries such as Zimbabwe and Botswana also have special chambers (e.g. the House of Chiefs), which are not, however strictly speaking, considered as part of the Legislature. Bicameral legislatures, on the other hand, are common in jurisdictions based on federal or substantially devolved systems of government. In these jurisdictions, legislative authority is shared between a “lower house” and an “upper house” although the degree of responsibility between them varies. These jurisdictions include Ethiopia, South Africa, Nigeria, the United Kingdom, India, the United States of America and the Federal Republic of Germany.

Although the design of the Charter is one of federal state, Article 28(2) of the Charter provides for a single chamber. The parliament then has the responsibility of enacting appropriate legislation to deal with the issues that would ordinarily have been dealt with by the second house.

In addition to the traditional/conventional functions of legislatures, the Transitional Federal Parliament will have the unique responsibility of baby-sitting the creation of the federal structures necessary to operationalise the Charter. In doing so, it would have to balance the competing interests of the regions forming the federation and the National Government.

The Executive – President

The executive is the branch of government that carries out the work of governing by implementing laws and policies. Public policies are made and implemented by the Executive; which is responsible for managing state revenues, internal and external security, foreign relations and enforcing laws as some of its principal tasks. To an extent, the Executive is the most powerful State organ.

Executive authority is personified in the sovereign of the State, who may be a president in a republican state or a monarch in a monarchical state. It may be divided between a president and a prime minister.

The character of the Executive has a significant impact on the power it exercises and the means of control of that power. A pure parliamentary executive would lend itself to a more direct control by an enhanced accountability to the Legislature through the confidence motion process. Conversely, the mixed executive, like Kenya’s, exhibits a higher level of control over the Legislature by the presidency.

On the character of the Executive, a number of jurisdictions such as Australia, Canada, Germany, the Netherlands and the United Kingdom, provide for a ceremonial head of state (by whatever name) and a strong head of government (usually designated as Prime Minister). In these and similar jurisdictions, the head of state is often (though not always) a hereditary monarch, while the head of government and most cabinet ministers are elected members of the Legislature. In other jurisdictions, such as the United States of America, Nigeria and El Salvador, the President and cabinet ministers are not members of the Legislature. Hybrid systems, in which the head of state shares significant executive powers with the head of government (as in France), or in which the former, though retaining full executive authority, also appoints a Prime Minister (as in Tanzania and Uganda) are also common.

Issues of power-sharing, especially with the Legislature and the Judiciary, and accountability, are usually dealt with by an elaborate system of checks and balances. These include confirmation by the legislature of high-level Executive appointments, impeachment of the head of state/government by the Legislature, and judicial review of executive action. These are common features in many English-speaking jurisdictions.

The provisions of the Transitional Charter on the executive, show that the Executive model adopted is neither of a purely parliamentary one nor a presidential system. It is a hybrid model of the two as was with the independence Constitution.

The Judiciary

The judiciary consists of the Courts and the Judges and other judicial officers working in them. The Courts play an important role in upholding constitutionalism and the rule of law. The principal functions of the Court is to interpret the Law, settle disputes, protect the fundamental human rights and check the abuse of power by the other organs of Government.

An independent judiciary is the cornerstone of any successful Constitutional democracy. Judicial independence consists of two main elements – Decisional independence and Institutional independence.

Most written constitutions provide for the hierarchy of the Courts and their respective jurisdiction. Parliament is then left to legislate for the details and operation of these Courts.

The Charter does not clearly set out the hierarchy of the Courts from subordinate Courts to the Supreme Court. In most commonwealth jurisdictions, it is the High Court that is given original jurisdiction in civil and criminal matters. The Appellate Court then acts as the forum to appeal from the High Court. The Supreme Court is usually the final Court of Appeal and it only hears matters of Law. In federal jurisdictions, it also acts as the final arbiter of disputes between various levels of government.

The giving of unlimited original jurisdiction to the Supreme Court under Article 61 of the Charter may present practical difficulties. When a Court is granted “original jurisdiction” over any specified matter, it means that no other Court can decide on that matter. It is exclusive to that Court only.

Since the Supreme Court will not be located in every part of the country, it may become necessary for parliament to specify the categories of civil and criminal matters that will be dealt with by the Supreme Court. Like many other parts of the Transitional Charter, the provisions in the Charter on the Judiciary are quite broad and general. Parliament will be required to enact the necessary legislations to set up the Courts. In Kenya, although the Constitution had provisions on the judiciary, it was Parliament, which enacted all the laws that enabled the Courts to operate properly.

The Office of the Attorney General

The Charter provides for the office of the Attorney General as the principal legal Adviser of the Transitional Federal Government. It is not clear whether he is also in charge of public prosecutions.

In situations where the office of the Attorney General is an office in the public service and the holder enjoys security of tenure and is insulated from the Executive, it is also the duty of the Attorney General to conduct public prosecutions. In recent times, some constitutions have also provided for the office of the Director of Public Prosecutions as a separate office. When that happens, the Attorney General is left to do legal advice, drafting legislations, defending the Government in civil Courts, appearing in such Courts as Amicus Curiae – friend of the Court, etc.

Implementation of Treaties

Domestication of International treaties to which the Somali State is party to is provided for under Article 69(1) of the Charter.

In some other jurisdictions, such treaties are first debated in parliament and after approval the executive then binds the state by the relevant instruments of ratification or accessions.

It appears also that the Charter adopts customary International Law (Jus cogens) as part of the Laws to be enforced by the Government. These are pre-emptory norms of International Law that have acquired the force of law e.g. the right to self-determination, crimes against humanity, genocide and war crimes.

In as much as Article 69(2) of the Charter provides for the automatic application of bilateral agreements, there is an absence of the legislative oversight over the executive with respect to such agreements. Can the Executive commit the State to all manner of agreements without any consultations or getting approval of Parliament? The Charter provides for the overall oversight role of legislature on the executive and this can be extended to include the bilateral agreements.
Devolution and the Principle of Power Sharing

Devolution is the practice in which the authority to make decisions in some sphere of public policy is delegated by law to sub-national territorial assemblies (e.g. a local authority). Devolution entails transferring governmental or policy authority – with the powers of the constituent units determined by legislation rather than by the Constitution.

Thus devolution is by all means, a political device for involving lower-level units of government in policy decision-making on matters that affect those levels while deconcentration is its administrative counterpart. Devolution, as a specific category, refers to the arrangement where the powers and structures of decentralization are provided in the ordinary law and can thus be modified or repealed more easily than can federal arrangements and does not normally require the consent of the devolved unit. London’s devolutions to Scotland is of this type.

The term, “devolution”, is commonly used to refer to those situations in which a previously unitary state distributes power to other territorial units (as in India, Nigeria or Kenya at independence).

A large number of states today are federal or have elements of devolution. One estimate is that 40% of the world’s population lives under some form of devolution. In the Commonwealth, these include: Canada, India, Malaysia, Australia, South Africa, Nigeria, Pakistan and Britain. In Africa, there are the Nigerian and Ethiopian federations. Some of the longest surviving Constitutions – the US, Switzerland and Canada are federal. The European Union is a modern example of several important and well-established states delegating large elements of their sovereignty to a common political and administrative entity. The current moves toward a federation of East Africa and the ambitious plans of the African Union are examples of this latter tendency. In every one of these efforts, there is an overarching orientation to devolution.

Devolution is defined as the practice in which the authority to make decisions in some sphere of public policy is delegated by law to sub-national levels of government. It entails transferring governmental or political authority to the region/local units. Devolution is a political device for involving lower-level units of government in policy decision-making matters that affect them.

In designing any system of devolution of powers, in a federal state such as proposed in the Transitional Charter, there are some key issues that require to be carefully considered and addressed. These are: -

The level of devolution. To what unit or level will the power be devolved to. Is it a state, a region, a province, a district or such other sub-national unit. Closely linked to this is the number of such units. How many?

At the comparative level, a distinction must be made between systems of devolution that are purely federal and quasi-federal and those that may be characterized as decentralized. For the federal and quasi-federal countries, the following evidence emerges: America has 51 states, Germany has 16 Lander, Austria has 9 Lander, Belgium has 3 regions, Brazil has 26 states, India has 25 states, Canada has 10 provinces, The Republic of Comoros has 4 Islands, Ethiopia has 9 provinces, Malaysia has 13 states, Nigeria has 36 states, Pakistan has 4 provinces and 6 tribal areas, South Africa has 9 provinces, Spain has 17 autonomous regions, Switzerland has 26 cantons and the United Arab Emirates has 7 Emirates.

For the merely decentralised systems, the following evidence emerges: Antigua has 2 Islands, Cameroon has 10 provinces, China has 22 provinces, Columbia has 23 departments, Fiji Islands has 2 ethnic communities, Ghana has 10 regions, Georgia has 2 autonomous regions, Indonesia has 27 provinces, Italy has 15 ordinary regions, Japan has 47 prefectures, Namibia has 14 regions, Netherlands has 11 provinces, Papua New Guinea has 19 provinces and Sudan has 6 regions.

The broad principles and values that should be considered in the devolution. These values should be entrenched in the Constitution.
The powers that are to be devolved must be clearly defined. These are the Executive power of state, the judicial power and legislative power. Whether the sub-national unit will be given all or any of the three aspects of state power requires proper consideration. Closely linked to this is the consideration of what will constitute exclusive power or concurrent power.
The distribution of the fiscal and financial power of state. The financial power of the state is the power to raise revenue, the power to administer revenue and the power to spend revenue.

The allocation and distribution of the finances between the centre and the sub-units must be based on a fair and equitable distribution of the resource of the state. It must recognize the need for equalization for those poor or marginalized regions that are not economically endowed.

The allocation of the finances is also based on the allocation of functions to the different levels of Government on the principle of “funds follow function”. This is also to ensure that the citizens in all the sub-units are availed the same quality and quantity of services.

Finally, there must be a clear framework for the intergovernmental relations. How the centre will relate with the sub-units and how the sub-units will relate with each other. Equally important is the mechanism of settling disputes between National Government and the other sub-National units. The Supreme Court and the senate have proven to be the most useful forum for the resolution of such disputes in federal states.

Although the Transitional Federal Charter proclaims the federal character of the state, there appears to be many gaps in setting out the principles governing the federation, the number and levels of devolution of power, the distribution of state power and finances. However, the details of the federal character, institutions and distribution of state power will be covered in the necessary legislations to be enacted by the Transitional Federal parliament.

For a comparative analysis, I have attached an annexure to this paper containing a) principles of Devolution in selected countries and b) An extract of the report of the Constitution of Kenya Review Commission containing the List of powers of the National Government and the district Government in the context of devolution in the then proposed new constitution.

A careful analysis of the Transitional Federal Charter reveals the challenge and daunting task facing the Transitional Federal Parliament to move with speed to enact the many legislation identified in the Charter to achieve the objectives of the Transitional Charter. These new laws will also fill in the many gaps that have become apparent in the Charter. The Honourable members of the Transitional Federal Parliament will hopefully find the political good will and unity and purpose of mind to meet these challenges.