In February, Matt Bryden of Sahan Research contributed an Op-Ed on Somali Wire (Sahan-owned) accusing the Somali President of an “unconstitutional change of government”. He referred to the Somali Constitution as a reference point for such conclusions. Indeed, the Constitution does stipulate just that under Article 91. However, is it legally accurate to determine the term extension of the Federal government passed on 26th September 2020 illegal?
Before answering that, I will provide a short summary of Mr Bryden’s contribution to provide context.
“Has President Farmaajo Perpetuated a Constitutional Coup?”
According to Bryden, this is unequivocally correct. As previously mentioned, he argues that the Somali Provisional Constitution (SPC) definitively proves that as the Presidential term only affords four years, any extension beyond that is illegal, no if or buts. Despite no mention of the Article during this explanation, I believe I am correct to assume that Mr Bryden is referring to Article 91 of the SPC.
Mr Bryden further underpinned his argument by referring to Article 28E of the ‘Malabo Protocol‘ adopted by the AU in 2014 which states that “any amendment or revision to the constitution or legal instruments, which is an infringement on the principles of democratic change of government or is inconsistent with the Constitution” amounts to a “crime of Unconstitutional changes of Government”.
The combination of both points equated to what Bryden termed, the perpetuation of “illegal change of government” by President Farmaajo. Consequently, he argues the International Community must ask him to step down.
The fundamental flaw in the argument above is the complete dismissal of the provisional nature of the Somali Constitution. The Constitution itself is temporary within its current legal dynamic. This means that the Constitution is open to amendments if agreed by both Houses of Parliament in accordance with Chapter 15 of the Provisional Constitution.
Upon further inspection of Chapter 15, Article 132 (1) states that “neither House of Parliament may consider an amendment to the Founding Principles mentioned in Chapter 1 of this Constitution“. Article 132 (2) further elucidates that aside from “Article 49“, any amendment of the Constitution must be “only in terms of the procedures set forth in Clauses (3) through (9)“.
Clause 8 of the relevant Clauses mentioned in Article 132 (2) definitively proves the legality of the term extension of Federal institutions which was passed by both Houses of Parliament on 26th September 2020. The text states that the Federal Parliament will adopt a proposed Constitutional amendment “only after approving it on a final vote in the House of the People by at least two-thirds (2/3) of the existing members, and on a final vote in the Upper House of the Federal Parliament by at least two-thirds (2/3) of the existing members“. This was achieved in both Houses of Parliament which became an amended on 26th September. Additionally, this amended was passed during the first term of this Federal Parliament as stipulated by the Constitution and it was passed during the legal tenure of the Parliament.
Furthermore, the political motivation behind this decision is essential to understanding the extension of Federal institutions. The political impasse by September 2020 regarding the election implementation became clear and the possibility of the absence of an agreement was an increasing likelihood. This would create a possible legal loophole as a result of the fact that the legal tenure of Federal institutions including the Presidency could end without any elected replacements. Indeed, this would create both legal and political uncertainty which could not be resolved due to the absence of a Supreme Court. Therefore, without Golaha Shacabka and other Federal institutions, what would be highest authority to resolve the legal uncertainty regarding governance? Additionally, how would the current administration enable the effective transferal of governance including a myriad of policies? For instance, the United States President remains in office for an extra two months after the Presidential elections between November and January to ensure the effective transfer of power. This is to allow a smooth transition between administrations. Such a principle is also needed in Somalia.
Finally, the application of Article 28E of the Malabo Protocol would be incorrect. Article 28E of the protocol states that the amendment must be “infringement on the principles of democratic change of government” or “inconsistent with the Constitution“. As explained above, the amendment does not factually fulfil neither legal requirements to suffice the activation of Article 28E.
Additionally, to refer to the African Court on Human and Peoples’ Rights as fundamentally binding international law for Somalia is absurd to say the least. The Court has only 30 states that have ratified the legal protocol underpinning it under African Union law which Somalia is not a member of.
Of those, currently only nine African nations recognise its competency. For instance, Côte d’Ivoire announced that it was withdrawing from the court in April 2020, after the tribunal ordered the government to suspend an arrest warrant for Guillaume Soro.
It is evident the court remains at its infancy and theoretical level and is not currently effective in even achieving ratification and acknowledgement by all members of the AU organisation it serves.
Despite points made by Mr Bryden, it is evident that his argument is based upon cherrypicked facts that do not provide the entire puzzle but merely a piece. Instead of asking how it is unconstitutional, one ought to think, how is it not constitutional?
Additionally, no foreign ambassador or head of state has the right ask the Somali President to step down. Somalia is a sovereign and independent country. A right afforded to it by international law as well as its membership of the UN and the AU.
Somalia deserves the legal and political respect afforded to its fellow 194 nations of the world.