The constitution of Somaliland is a progressive document. It gives sovereignty to the people, restricts the power of the state organs by stipulating Bill of Rights, establishes separation of powers, subjects the military under civilian rule and emphasises democracy and consultations.
It is one thing to have a constitution and another thing to be abiding by it. The constitution of Somaliland is largely a document in shelves. It is rarely applied. Institutions that are pre-requirement to operationalise the constitution are not functional. Laws that predate and contradict the constitution are still applied.
Legal and institutional reforms have not been taken to reinstitute the country into a democratic and human rights-based one.
The fact that the country has been in one-man-rule in 21 years cannot be ignored. Many of the current institutions were created during Siad Barre military era. Uprooting these institutions are needed to make the constitution truly the supreme law of the land as stated in article 128 of the Constitution.
The democratic journey has been taken without redressing constitutional requirements and obligations. Therefore, the process lacks the spirit of constitutionalism, in which its absence makes possible to reversal.
Clan domination in party politics
Political parties were aimed to serve as a forum for politicians and as a tool and process to reach power, present policies, check power holders and unite people along with policies and ideologies. Article 9 of the Constitution limits political parties into three. Instead of forming parties that transcend clan affiliations, Somaliland political parties armoured clan affiliation and transformed it into a powerful political tool.
Political parties seek support from clan members and do not invest time or energy in widening their support beyond clan alliances. Because no single clan has numbers needed to elect a president, alliances of clans are forged by political parties in both camps.
This clan dominance weakened internal democracy within parties. A political party is treated as a company owned by its leader and backed by his clan with the support of allied clans. Structures within the party required by the law to function do not exist or are dysfunctional. Political parties then emerged as authoritarian institutions operating in a democratic national platform.
The nature of the parties debilitated and hampered the democratisation process. If political parties are not democratic, expectations of democratic performance should not be high.
Clan based political competitions revive interclan conflicts and resuscitate grievances that may lead to instability. It also wanes accountability and transparency, increasing nepotism and corruption.
Legal lacuna
The electoral legal framework in Somaliland is incomplete. There is no law on how parliamentarians in both houses should be elected. There is no separate law establishing the National Electoral Commission.
Few articles in the Presidential and Local Councils Election Act provide the mandate of the Commission. It lacks clarity, necessary details and does not include the creation of strong secretariat for the Commission to preserve sustainability and efficiency. The Commission is also highly centralised, putting more pressure on seven members in the headquarters.
The Registration of Political Association and Certification of Political Parties Act (Law No 14) is the only legislation that puts standards on party management. It is a few pages long law with vague, contradictory and generic articles. The Act has undergone amendments, but none of these amendments addressed loopholes.
Presidential and Local Councils Election Act has been amended many times. Some of the articles were changed more than three times. The legal framework is moulded by conflicting political views that are not prioritising clearer electoral legislations. In many areas of political contestations, there are legal loopholes that are either intentionally put in place or slipped the attention of the lawmakers who later failed to correct.
Institutional weakness
Institutions are vital for the protection and promotion of democracy. As mentioned above, the electoral body needs legal and institutional reforms to make it sustainable, strong and effective institutions that can handle the everchanging and complex electoral issues.
Putting all functions on the shoulders of seven members who are always under the hotspot of political controversies is not a good option. Legislating a law that establishes a stronger electoral body with effective and operational and independent secretariat formed in a decentralised format is needed.
The current selection process of the members of the National Electoral Commission is highly political. An alternative mechanism has not been so far presented. Recent calls from one of the opposition parties asking an increase of the number of nominations from the opposition political parties might appease opposition parties but will only exacerbate politicisation of an institution that should be nonpartisan and independent.
The judiciary is another institution vital for the electoral process. Strengthening institutional, legal and financial independence and efficiency of the judiciary should be a top priority to preserve democracy. Unless the judiciary is perceived as independent and reliable by stakeholders, the democratisation process will face challenges.
Disputes that should be resolved in a judicial process now drag the country into the never-ending political deadlock that affects the day to day activities of the government and push elections.
Disfranchising electoral system
The electoral system disfranchises and marginalized groups. Efforts are not made to correct marginalisation inherent to the electoral system. Women, minority clans and nomadic communities are disfavoured by the system. The system (legally, technically and technologically), is made by urbane men who do not take into account the uniqueness of nomadic communities and demands of women and minority clans.
Women are disfavoured in terms of getting elected for offices. Minority clans who are scattered in the country and are not concentrated in electoral districts are also left out to be elected. Nomadic communities, however, are unable to vote. The fixed electoral system is structured for permanent residents. This favours greatly to urban cities and gives some room to rural communities. These obstacles affect in the regions that have more nomadic
communities, fuelling political grievances.
Like any other democracy, money plays a critical role. In Somaliland, there is no legal framework regulating how and where political parties and candidates can get money and how they can spend it. Henceforth, there is no regulation at all on the finances of the political parties. This increase corruption, vote paying, the possibility of foreign influence and gives more power to a few rich men.
Conclusion
A journey to fully functioning democracy requires daily inputs and cautious implementation of thoughtfully designed policies and institutional and legal reforms. Constitutionalism, rule of law and protection of human rights and enhancement of civic space are critical in any democratisation process.
Somaliland should make substantive and procedural changes to move the country into a democratic direction and retain gained thresholds. Independent media and organised independent civil society are equally vital for the democratisation process.
This briefing advises stakeholders to look at issues holistically. Delays of elections are not only unconstitutional, but they also challenge the legitimacy. The transition to democracy is a result of a judgment ordained by the people in a national referendum, and enshrined in the supreme law of the land, the Constitution. Therefore, political leaders do not have discretion or prerogative to decide whether and when the election should happen.
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Contact ISCO Somaliland Secretariat via:
Human Rights Centre, Jigjigayar, Hargeisa Somaliland
iscosomaliland@gmail.com
@ISCOSomaliland
