Chapter Three

[145] For more details of the Council of Ministers, see Article 94.

[146] See the footnote comments on the similar requirement under Article 41(1) for membership of the House of Representatives and, by extension (under Articles 59 and 94(5)), for membership of the House of Elders and the Council of Ministers.

[147] See the Presidential and Local Elections Law (Law No: 21 of 2001).

[148] This was done by the House of Elders on 12 January 2002 when the 5 year term of President M I Egal which was due to expire on 23 February 2002 was extended by one year to 24 February 2003. On his death in May 2002, President Egal was succeeded by Vice-President Dahir Rayale Kahin for the remainder of the term of office. As the Presidential election was due to be held in April 2003, the House of Elders decided on 18 January 2003 to extend the term of President Kahin to 15 May 2003.

[149] In the Arrangements, this Article is titles “The President and the Vice-President”.

[150] The phrase used to describe the spouse is literally “lady wives”, but as Article 82 of the Constitution does not disqualify women from being eligible for election to the office of President/Vice-President, the word “spouse” is more apt.

[151] The phrase used can also be translated as “commercial” which denotes a narrower range of activities.

[152] The period in the previous Constitution was 30 days. The sanction for a contravention of this Article will be the impeachment process under Article 96.

[153] See Articles 89 and 130(4) for the procedures for filling the office of President in the event of a vacancy arising in between elections.

[154] If the offence is impeachable under Article 96 (i.e it involves high treason or a contravention of the constitution), then the impeachment procedure will have to be followed before the loss of office can arise. However, there are no provisions in the Constitution for dealing with other crimes allegedly committed by the President/Vice-President, whilst there are provisions for crimes relating to ministers which can be dealt with under Article 94(8) through arrest in the case of very serious offences or through normal prosecutions on removal of immunities and privileges by the President, and, in impeachable offences, under Article 96(4) & (5). Although there are no express provisions in the Constitution, the President does have immunity from prosecution for non-impeachable offences if we follow the widespread practice in other countries. In the US case of Nixon v. Fitzgerald, 457 US 731 (1982), the US Supreme Court explained that absolute presidential civil immunity (from private law suit) is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.” The Court raised the following arguments in favor of presidential immunity: 1. The visibility and influence of the Office of the President, which makes its occupant an easy and tempting target for lawsuits; 2. The importance of insulating presidential judgment and energy from the distractions and pressures that potential liability for damages would create; and 3. The availability of alternative checks on presidential action, such as media scrutiny, congressional oversight, and the threat of impeachment. In the 1997 case of Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L.Ed. 2d 945 (1997), the US Supreme Court ruled that President Clinton, who is then the incumbent president, was liable to a suit for damages, based on actions taken before his term began. So far as criminal immunity (outside the range of impeachable offences) is concerned of there is a considerable debate the US, but the view of the US Solicitor General is that it is recognized that the President (and not the Vice-President) is immune from criminal process, whilst still in office or until he is removed from office through impeachment. It is said that the Framers of the Constitution assumed "that the nation's Chief Executive, responsible as no other single officer is for the affairs of the United States, would not be taken from duties that only he can perform unless and until it is determined that he is to be shorn of those duties by the Senate." The opinion adds that the "Framers could not have contemplated prosecution of an incumbent President because they vested in him complete power over the execution of the laws, which includes, of course, the power to control prosecutions." http://www.usdoj.gov/olc/sitting_president.htm (Last visited 17/12/2004). In France, following a previous ruling by the Constitutional Council, the Court of Cassation held (in Arrêt No. 481 of October 10, 2001) that the French president could not be tried or even questioned in court proceedings for any criminal offence which is not high treason for the duration of his term - http://www.courdecassation.fr/agenda/arrets/arrets/01-84922arr.htm (last visited 17/12/2004) .

[155] No such law has been passed yet.

[156] This was added in 2000 revision of the Constitution and was not in the 1997 Constitution. In the old Constitution, the Vice-President assumed the office of President until the end of the presidential term.

[157] The Constitution says here “for the remaining two years”, but clearly the period could be, and is likely, to be less than 2 years. The Presidential term of office is five years and the succession process during the first three years is dealt with in the preceding Clause.

[158] This Clause was invoked on 3 May 2002 when President Egal died and Vice-President Kahin assumed office for the remainder of the term, which was, at that time, due to expire in February 2003. President Kahin’s nomination as Vice-President, Mr Ahmed Yusuf Yasin, was approved by the two Houses. There was a controversy arising, well after the event, that as the first presidential election was not held by then and the formation of the party system has not been completed yet, any presidential succession should have been dealt with under the more relevant Article 130(4). As there appeared to be a number of serious practical difficulties in following Article 130(4), a decision was made, apparently at a meeting of the speakers of both House of Parliament, on the sudden death of President Egal, that this Clause should be chosen in preference to Article 130(4).

[159] The need for the confirmation of the nomination of Vice-President by the two Houses in these circumstances was made clearer in this Clause in the revision of the Constitution.

[160] See Article 94.

[161] Note that under Articles 113 and 114, the Auditor-General, the Governor of the Central Bank, the Chairman and members of the Civil Service Agency and the Attorney-General are considered to be holding special offices and their appointment is subject to ratification by the House of Representatives. The other senior officers listed in this Clause do not require parliamentary approval.

[162] Qisas imposes a specified punishment imposed by Sharia as an obligation in order to carry out the rights of mankind as the victim has the right to seek retaliation or retribution. It imports a sense of “equality” or “balancing” or “proportionality” in that the treatment of the offender should match the harm of the offence and relates to offences that involve bodily injury or loss of life. The punishment is death or imprisonment, but compensation in the form of a sum of money or property (diyat and irsy) is accepted if the guardian of the victim forgives the offender. The concept of retribution was found in the first statutory "Code of Hammurabi" and in the Law of Moses in the form of "an eye for an eye", but Muslims add to that saying, "but it is better to forgive." It follows, therefore, that the victim or his guardian possesses the power to pardon or, at the very least, any pardon must be subject to their rights. Indeed the Somali Criminal Procedure Code (Article 14) allows an “injured party” or his legal representative to apply to the criminal court for recovery from the accused damages for any civil liabilities arising from the offence.

[163] It is not clear how far the limits of some Sharia principles may be applied. On the whole, the punishment for Hudud offences which are considered to be based on the right of Allah cannot be commuted, whilst Qisas offences, which are based on a mixed right are subject to can be pardon by the victim or his relative. Punishments for T’azir and ijtihad offences based on individual and state rights may also be commuted or pardoned. The Somali Penal Code divides offences into crimes and contraventions, which are less serious and an amnesty or an indult or a pardon can apply to all offences.

[164] I have translated the Somali phrases “cafis iyo saamaxaadda” as “pardon and amnesty”. The US Constitution (Article II, S.2) uses the phrase “reprieves and pardons for offenses against the US except in cases of impeachment” which has been accepted as including “pre-conviction” pardons, as a pardon presupposes an offence only and nothing else. The power to pardon has been held to include the power to grant amnesty by proclamation. Broadly, pardon is governmental forgiveness for an individual offence, whilst amnesty is the decision not to punish for the offence: "Amnesty is the abolition and forgetfulness of the offence; pardon is forgiveness" – US Supreme Court inKnote v U.S., 95 U.S. Article 149 The Somali Penal Code (following the 1960 Somali Republic Constitution) deals with amnesty which extinguishes the offence (and applies to offences committed before the amnesty is given) and also the sentence, where sentence has already been passed. It shall cause the execution of the sentence and that of other linked accessory penalty to come to an end (Article 149(1)). Also Article 149 of the Penal Code refers to “indult and pardon” which “shall constitute condonation, wholly or in part, of the punishment imposed or shall commute it to another punishment…”. “Indult” applies to all persons in a specific category, and hence is impersonal, whilst a “pardon” applies to a specific person, but neither extinguish linked accessory penalties unless this is specifically stated in the indult or pardon decree. Under Article 255 of the Somali Criminal Procedure Code, appeals for pardon (or for conditional release) from convicted persons or their descendants, ascendants or spouses shall be addressed to the President and sent to the Attorney General. The President, on the advice of the Minister of Justice and the Attorney General, may grant the appeal. Interestingly in the 1960 Somali Republic Constitution, the power to grant amnesty or indult laid with the Parliament which may delegate it to the President on a two-thirds majority vote (Article 64), whilst the power of pardon laid with the President (Article 75(c)). In Somaliland, all these powers lie with the President. Both the late President Egal and the incumbent, President Kahin, have exercised this power at Eid festivals - the last one on 09/02/2003 when 368 prisoners were offered an indult, with the decree specifically excluding persons convicted of various listed offences. Amnesties have also been extended to various individuals in connection with offences relating to their involvement in Somalian peace conferences. There are no published criteria for the exercise of this important power.

[165] The phrase used is “heshiisyada caalamiga ah” – international agreements. See also Article 53(3) which sets out the House of Representatives’ power to approve “heshiisyada dawliga” – Governmental agreements. The two Arabic based adjectives are likely to mean the same in most instances, but it is arguable that specific agreements with international organisations or bodies and not with their governmental members would be included in the former, but not in the latter definition, which is confined to Governmental bilateral or multilateral treaties.

[166]This power is subject to the oversight by Parliament as set out in Article 92.

[167] It is not clear which laws this Clause refers to. Article 98 of the Constitution gives the judiciary power to interpret and adjudicate in all laws, and, this Clause may simply refer to the enforcement of laws which are not enforced by orders of the courts. Any other interpretation would give the Executive judicial powers, which would be contrary to the separation of powers set out in this Constitution.

[168] Article 86 and 89 deal adequately with the vacancy of the office of President and the role of the Vice-President.

[169] In the previous Constitution, there was the additional requirement that the House of representatives must not be in session or, even if in session, could not, in the view of the President, be able to reach a resolution urgently before the President could issue emergency decrees.

[170] In the previous Constitution initial oversight of emergency legislation was the responsibility of the Standing Committees of the two Houses.

[171] These are Decree-Laws, similar to those allowed under Article 63 of the 1960 Somali Republic Constitution. It is implicit in this Clause that the such Decree-Laws are subject to “negative” resolution procedure (rather than a “positive” resolution procedure) of both Houses and will continue to be in force unless the two Houses resolve otherwise at their initial meeting or the subsequent three monthly review meetings.

[172] The periodic review of emergency legislation has been reduced from six to three months in the revision of the Constitution.

[173] Rule 44(d) of the Rules of the House of Representatives refer to a 30 day period for submission of the appointment to the House, but, this is an incorrect re-statement of Article 94 (or its predecessor Article 119 in the 1997 Constitution). The 30 day period refers to the swearing in period after confirmation of the appointment by the House and not the period for submission of the appointment to the House. In fact no such period is set by the Constitution, but Article 114(3) confirms that all “office holders of the state whose appointments are, according to the Constitution, subject to confirmation shall not hold office in a temporary capacity for more than three months (whilst awaiting confirmation).” This, in my view, applies equally to ministers and deputy ministers, and it is submitted, therefore that such appointments should be presented to the House for approval within that period. It follows, therefore, that if no such approval has been received within the three months, then the appointment shall lapse. Renewing the appointment immediately on the expiry of the three month period, or re-submitting a rejected appointee to the House immediately after the three month period would, in my view, be contrary to Article 114(3) as that would be tantamount to allowing the appointee to hold office without confirmation for a period longer than three months. See also the note relating to Article 114(3).

[174] See Article 41 above.

[175] In the last Constitution, this Clause also included a bar on members of the House of Representatives or the House of Elders being appointed as Ministers or Deputy Ministers. This has now been removed in the revision, but no one can hold a ministerial post and be a member of parliament, at the same time (see Articles 48 and 70).

[176] This ancient phrase has come into Somaliland Constitution through its adoption in Article 73(6) of the 1960 Somali Republic Constitution, and prior to that Article 90 of the Italian Constitution, but many other countries’ constitutions, such as, France, include the same impeachable offence. The offence is narrower than its US Constitution counterpart of “treason, bribery, or other high crimes and misdemeanors” (Article II, Section 4). It initially appeared in the Somaliland National Charter 1993 (Article 28) which also included, other than contraventions of the Constitution, the imprecise offence of “major scandal”. In English Law, high treason was the crime of disloyalty to the Sovereign. Offences constituting high treason included plotting the murder of the Sovereign, levying war against the Sovereign and adhering to the Sovereign's enemies, giving them aid or comfort. Several other crimes have also constituted high treason and included couterfeiting and attempting to undermine the lawfully established line of succession, and in 1795 the offence was extended to include the contemplated use of force to make the King change his counsels. "High" in the legal language of the 18th century meant "against the State". A high crime, is therefore one which is aimed at the sovereign or state and not an individual and, in the modern context, includes seeking to overthrow a state, giving aid or comfort to its enemies, or injuring the state to the profit of an individual or group. In democracies, it may also include crimes which attempt to alter the outcome of elections. In the Somaliland context, the only attempted impeachment of a President in 2001 included allegations that the President was not committed to Somaliland’s sovereignty as an independent state, and any evidence indicating acts to undermine the sovereignty of the state may well fall within the definition of a high crime.

[177] This US style impeachment process was introduced at the revision of the Constitution. The previous procedure for the President and the Vice-President was a two-thirds majority of both Houses leading to a trial at the High Court of Justice.

[178] In the previous Constitution, if the President was not satisfied with the information laid by the Attorney General, he was obliged to forward the charges to the House of Representatives which would decide by a simple majority whether or not to accept the charges.

[179] This Court has also jurisdiction under Article 79(2) to hear cases relating to members of Parliament. This Court’s origin goes back to Article 76(3) and 84(2) of the 1960 Somali Republic Constitution where it had jurisdiction to deal with the impeachment of the President, the Prime Minister and the Ministers. Under Article 7 the Somaliland Organisation of the Judiciary Law 2004, the Court sits as a full bench and conducts its trials in line with the Criminal Procedure Code.