Somalilandlaw.com Commentary:The term extensions are wrong in law and wrong for Democracy

Somalilandlaw.com Commentary: The term extensions are wrong in law and wrong for democracy: A call for an immediate Constitutional Court review and a statutory reform.

15/05/2015: House of Elders (HoE) latest three term extensions on 11 May 2015- Copy of the HoE Resolution (in Somali) and a summary of the 3 extensions.

HOUSE OF ELDERS S/ELECTION LAW

Background

The current 82 member Somaliland House of Elders was selected by the various communities on the basis of an agreed formula at the last Grand Conference of the Somaliland Communities held in Hargeisa in February 1997.   Some of the chosen members were also member of the House since 1993 when its position within the Somaliland Legislature was formalised at the Borama Grand Conference of the Somaliland Communities. Under the Interim Constitution of 1997, as well as the Constitution adopted in 2000/1, the term of office of the House is  six years, which initially expired in early 2003. There have been, however, extensions of the term of the current House under various formulas as, unlike the terms   of the House of Representatives and of the President, there are no constitutional provisions which address the extension of the Elders’ term of office.   Briefly these controversial extensions were as follows:

• In 2003, a single Article Law (Article 19 Law) was passed by both Houses and signed by the President. This stated that the Elders’ term was to expire one year after after that of the House of Representatives. This, therefore meant that when the House of Elders extended the term of office House of Representatives in 2003 for two years from 16 May 2003 to 16 May 2005 and then again in 2005 for 143 days to 15 October 2005, the Elders term was automatically extended to end a year later.  Under this formula the House term was extended to  15 October 2006. This linkage formula lapsed with the first general election of the House of Representative in September 2005.
• On 6 May 2006, the House of Elders extended their own term of office for a further 4 years.
• On 7 September 2010, the House again extended their term foe another 3 years and 8 months when it also extended the term of the current House of Representative elected in September 2005 (on 5 year term) for a further 2 years and 8 months.
• This last extension which ends in June 2014, therefore means that the House of Elders s/elected in 1997 for 6 years would,by then, served for  a total  of 17 years.
• On 6 April 2013, the House of Elders met , in an extra-ordinary session during their recess to consider a term extension for the House of Representatives, the previously extended term of which was coming to an end in May 2013, and having decided to extend the Representatives’ term by a further period of 2 years and 27 days, also decided to extend their own term of office for a further 3 years. This means that their term will now end in June 2017 – by then the initial 5 year term of the House would  be extended four fold to 20 years.  As there are no constitutional or legal provisions which give the power to the House of Elders to extend its own term, specially since the “extension linkage formula” expired in September 2005, the House appears to have “assumed” this power through usage.
• 16/05/2015: For the latest 11 May 2015 extension of the term of the House to 27 June 2018, see below.

S/Election of the House – Indirect or Direct Elections

The Constitution does not specify whether the House members should be directly or indirectly elected and no consensus has been reached yet as to the mechanics of election/selection.

• Article 58(1) of the Constitution states that “the members of the House of Elders shall be elected in a manner to be determined by law”.
• Article 62 of the Constitution, however, refers to “selection” rather than “election” when states that “ the inaugural meeting of the House of Elders shall take place within 30 (thirty) days of the date when their selection is completed”.

Editor’s view: It remains my long held view that there is nothing in these Constitutional provisions which prevents the “indirect election” of the House so that the traditional communities’ representation  is maintained as a counterbalance to elected chamber. There is however a pressing need for wide consultations and discussion on the mechanics of the indirect election.

Previous Direct or Indirect Election Bills

The only bill that reach the floor of the two House was the 2006 House of Elders (Direct) Election Bill was passed by the House of Representatives in on 16 September 2006 (on a vote of 34 for and 30 against) and proposed, for the first time, direct elections of the Elders. The two opposition parties supported such direct elections, but many civil groups preferred to keep the traditional element in the House and supported indirect elections. The Elders considered the Bill on 23 September 2006 and rejected it on a vote of 68 votes against (i.e over two thirds of the members) and also on a “point of principle”. This meant that under Article Article 78(5) of the Constitution, the Representatives could return the bill to the Elders ONLY if they could pass it again, this time, by two third’s of their total membership. They were not able to do so and the bill lapsed.

Various other draft bills proposing indirect elections were considered  in the past, but were not approved.  Copies of these are as follows:

• 2006 Indirect Elections Bill. There is no record of this Bill being considered by Parliament
• 2003 Indirect Election Bill – Both versions of this Bill were considered by the House of Representatives  but only one clause on HoE term extensions was adopted (see above).

Term extensions by the House of Elders using the constitutional contingencies clauses:

The contingencies clauses:

Art. 83(5): ‘If on the expiry of the term of office of the President and the Vice-President, it is not possible, because of security considerations, to hold the election of the President and the Vice-President, the House of Elders shall extend their term of office whilst taking into consideration the period in which the problems can be overcome and the election can be held’. (My underlining)

Art. 42(3): ‘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.’ (My underlining)

On 11 May 2015, the House of Elders decided the following:

1. a) To extend the term of office of the President/Vice-President whose elected first term of office expires on 27 July 2015 (and not, as widely publicised,  on 26 June 2015 which is the 5^th anniversary of his election day) to 27 June 2017 – a period of 1 year and 9 months.
2. b) To extend again for the third time the term of the House of Representatives (elected in 2005 for 5 years) which is due to end on 26 June 2015 to 27 June 2017 –  a period of 1 year and 9 months.
3. c) To extend the term of  House of Elders (selected in 1997 for a 6 year term) whose four times extended term was not even due to end until mid 2016, was extended to 27 June 2018, as the HoE decision states that its end of term will be ‘one year after’ (quoted verbatim) after the end of the  extended term of the HoR. This means the Elders who do survive since their selection in early 1977 for a 6 year term will, by 2018, serve 21 years.

Copy of the HoE Resolution dated 11 May 2015 (in Somali) on the term extensions.

16/05/2015: Somalilandlaw.com Commentary on the latest term extensions:

The term extensions are wrong in law and wrong for democracy: A call for an immediate Constitutional Court review and a statutory reform