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Akhriso Dastuurka Somaliland

Dastuurkii Hore English Translation of the Constitution

Warbixin iyo talooyin ku saabsan wax-ka-beddelka Dastuurka Qaranka Somaliland

Report and Recommendations on the proposed changes

to the Constitution of Somaliland

Prepared by

Somaliland Forum Constitution Ad-hoc Committee

November 1999

Hordhac:

Ururka Somaliland Forum oo xubnihiisu kala joogan aduunka darafyadiisa kala duwan, oo ku xidhiida isgaadhsiinta Internetka, iskuna bahaystay wax-u-qabadka ummadda Somaliland, ayaa dhowaan u xil saaray xubno ka mid ah ururka eegista talada wax ka beddelka Dastuurka ee Dawladdu soo jeedisay bishii July 1999. Xubnahaas oo xeel iyo aqoon gaar ah u leh cilmiga Dastuur qoridda, waxa loo direy in ay soo dersaan, talooyinna ka soo bixiyaan, ansixinta wax-ka-beddelka Dastuur Qaraameedka Somaliland.

Dhammaan xubnaha ururku, maamulka golaha dhexe iyo guddida cilmi baadhista Dastuur Qarameedku waxay ku rajo wayn yihiin in talada Wax-ka-beddelka dastuurka ee aanu halkan ku soo gudbinay ay noqoto mid wax ku ool ah, doodda dastuurkana aqoon iyo aragti gaar ah ku kordhiso. Ururka Somaliland Forum wuxuu si gaar ah ugu baaqayaa kuna dhiiri gelinyaa in dadweynaha Somaliland ay u feejignaadaan, kana qayb qaataan doodda Dastuur Qarameedka. Sidoo kale ururku waxuu ugu baaqayaa labada Gole’ iyo Guddida Gaarka ah ee Dastuur Qarameedka in ay ka digtoonaadaan ansixin degdeg ah oo aan laga baaraan degin dadweeynahana talada laga qayb galin.

Waxa kale oo uruka Somaliland Forum ugu baaqayaa saxaafada Somaliland in ay waajibkooda ka gutaan jahli-bixinta, warfaafinta iyo wargelinta dadwaynaha ee doodda iyo anshaxinta distoor qarameedka.

Guddiga Dhexe ee Somaliland Forum waxay mahadnaq kal iyo laab ah usoo gudbinayaan xubnaha Guddihoosaadka Dastuurka Qaranka oo muddo gaaban kusoo gebagebeeyey howshii Forumku u wakiishay. Ururka Somaliland Forum wuxuu ugu danbayn u hambalyaynayaa dhamaan inta ku howshootay ama ku howlan qaran-dhisida, dastuur-qorrida iyo doodaha la xidhiidha, iyo dib u dejinta ummada, dayac tirka iyo daryeelka waddanka. Waxaanu Ilaahay (SWT) idinka baryanaa inuu idinku garab galo. Aamiin.

Guddoomiyaha Guddida Dhexe

Somaliland Forum

Warbixin Guddi-Hoosaadka Beddelaadda Dastuurka:

Bishii Ogost 1999 dhammaadkeedi ayaa Guddida Dhexe ee Somaliland Forum noo xilsaartay in aanu darisno oo aanu Forumka u soo jeedino aar'adayada iyo tilmaamo ku saabsan beddelaadda ay Dawladu soo jeedisay ee ku saabsan Dastuurka ummadda ee Jamhuuriyadda Somaliland. Waxaanu u mahad celinaynaa Maxamuud Nuur (Dubai, UAE) oo Forumka u soo gudbiyay nuqul ah Dastuurka cusub ee Dawladdu soo jeedisay, iyo Guddoomiyaha Forumka oo nagala qaybqaatey gudashada xilkan.

Waxaanu daraasaddayada ku salaynay arrimahan soo socda:

· Waxaanu eegnay 156kii qodob ee Dastuurkeenna iyo sida qodob kastaba beddelaaddu u saamaysay.

· Waxaanu derisney qodobodda la beddelay micnahoodu sida ay yihiin iyo beddelaaddu inta ay ku koobantahay.

· Waxaanu faallaynay beddelaad kasta, annagoo eegnay qiimaheeda iyo faa'idada ama dhibaatada ay u keeni karto umaddeenna iyo dalkeenna.

· Waxaanu ka fakarnay talo ahaan wixii Forumku u jeedin karo Dawladdeenna iyo dadkeenna, anagoo tixraaceyna mabaa'diida ay dadkeennu ku caddeeyeen Shirarkii Burco, Boorama iyo Hargeysa. Gaar ahaan, madax-banaanideenna, diimoqraadinimida, xuquuqda qofka ee aasaasiga, dhismaha dawladda ee u qaybsan sharci-dejinta, fulinta, garsoorka iyo shuruudaha dheelitirka awoodaha qaybaha Dawladda (checks and balances).

· Ugu danbayn, waxaanu ka fikirnay tallaabooyinka uu Foorumku ka qaadi karo arrintan.

Dawladdu dastuurka cusub ay soo jeedisay waxa uu ka koobanyahay 99 qodob. Laakiin, marka la eego 156ka qodob ee Dastuurkeenna, 59 qodob oo keliya ayaan waxba laga beddelayn; 19-na wax yar oo aan qiimo badan lahayn ayaa laga beddeleyaa; 45-na waa la tirtiraya; inta kelana wax wayn baa laga beddelayaa.

Guud ahaan, waanu fahamsanahay in dastuurku uu u baahan yahay kabid yar (tusaale ahaan, tirada Xisbiyadda oo hadda ku kooban 3). Laakin nalama aha in waqtigan loo baahan yahay beddelaadda ballaadhan oo ay dawladdu soo bandhigtey.

Waxaanu soo jeedinaynaa in Guddi madaxbannaan oo Dawladda iyo Barlamaanka ku jiraan loo xilsaaro in ay eegaan arrintan. Waxaanu kaloo ku adkeynenaa Dawladda in si deg deg ah arrintaas loo dhammeeyo oo Afti (Referundum) laga qaado ummada sida ku taal Dastuurka. Aftidu waa arrin loo baahanyahay oo adduunka aynu ugu baaqi doono madaxbanaanideenna. Waxaanu soo jeedineynaa in Guddiga Aftida ee Dastuurku dhigeyo (Qodobka 152aad oo beddelaaddani soo jeedisay in la tirtiro) si deg deg ah loo magacaabo oo ay dadweynaha u bandhigaan nuxurka Dastuurka, kuna abaabulaan oo ku dhiirriyaan in ay dastuurka fahmaan, kana qaybqaataan aftida iyagoo adduunka oo dhan dhawaaqa ummaddeenna gaadhsiinaya.

Waanu eegnay in beddelaaddu ay wax u dhimeyso qarannimadeenna iyo madax-bannaanideenna. Marka aannu derisnay nuqulka beddelaada aannu hadda gacanta ku hayno iyo dastuurka asliga ah (ee aan ahayn nuquligii "draafka" ahaa aan la isku raacin shirkii Hargeysa), maannu arkin wax dhibaato weyn u keeni kara qarannimadeenna. Hase ahaate, waannu la soconnaa in dad badan oo dalkii joogaa ay arritan ku kaceen, waax nagamida guddigeennana wuxu soo jeediyey in aanu baadhis dambe u galo arrintaas. Go'aanka aannu arintaas ka gaadhnay waxa saldhig u ah nuqullada aanu hadda gacanta ku hayno. Haddi ay jiraan wax aannanu la socon, oo dib naloogu soo sheego beddelaad aannanu hadda ogayn waannu ka fiirsandoonnaa. Laakin, hadda waxay nalatahay in aanay beddelaaddu wax dhibaata ah aany madaxbannaanideenna u keeneyn.

Si kasta ha ahaatee, waxaanu aad iyo aad u diiddannahay beddelaadda ku saabsan xuquuqda bani aadmiga ee dadkeenna. Waxaanu kaloo dareenay qodobada aad moodo in ay Dawladda awooddeeda kor u qaadayaan, isla markaana hoos u dhigayaan awoodda Baarlamaanka, gaar ahaan, Golaha Wakiilada oo ah qaybta ugu horreysa waaxda xeerdejinta ee Dalka. Waxaannu kaloo diiddannahay, beddelaad ku saabsan waaxda garsoorka.

Xubnaha Guddi Hoosaadka Dastuurku waxay isku raaceen in aannu diyaarino warqad furan (open letter) oo aanu u dirno Dawladeenna, Golayaasha Baarlamaanka iyo jaraa'idka Dalka, innagoo si qeexan u sheegayna aara'deena. Ururka Somaliland Forum wuxuu naga oggolaaday taladaa ah in waraaqdaa loo diro Dowladda iyo dadwaynaha Somaliland, waxayna Guddida Dhexe ansixisey 1dii bisha November 1999. Waxaannu halkan idiinku soo gudbinaynaa talooyinkii aannu Forum ahaan u soo jeedinay Umadda iyo Dowladda Jamhuuriyadda Somaliland.

Ilaahay baa mahad leh.

GUDDI-HOOSAADKA DASTUURKA

Somaliland Forum

Ibraahim Xaashi Jaamac, Manchester, UK

Cabdillahi Cawad Cighe, Liverpool, UK

Jamaal Cabdi Gaboobe, Seatle, USA

Maxamad Suleiman Faarah, Toronto, Canada.

Waraaq Furan oo ku Socoto Dowladda

Iyo Dadwaynaha Somaliland oo ku Saabsan Talda Wax-ka-beddelka Dastuurka

NUQUL KOOBAN

Open Letter to the Somaliland Governament, Legislature & the Public on the Proposal for Changes to the Constitution

SUMMARY

Waxa aanu nahay Forum caalami ah oo ay ku bahoobeen muwaadiniin reer Somaliland ah oo ku kala nool cidhifyada adduunyada, kuwaasoo, inkasta oo ay ka durugsan yihiin waddankii hooyo, haddana ku wacad galay xoojinta aqoonsiga siyaasade-ed, kobcinta dhaqaale iyo sareedada guud ee ummadda Somaliland. Ma aannu nihin urur siyaasadeed, haseye-eshee waxaanu si xoog leh u danaynaynaa wax kasta oo taabana-ya madaxbannaanida qaranka, dimoq-raadiyadda, xuquuqul aadami-ga iyo xukun-wanaagga. Arrimahaas oo isugu soo biyo shubta nidaamka dastuuriga ah oo hadda ku xididaysanaysa bulshadeenna, ahna ta casrigan u keeni karta bulsha kasta xasilooni waarta iyo caddaalad.

We are an international forum consisting of Somalilanders living in the Diaspora who are committed, albeit from a distance, to the strengthening of the political identity, economic viability and general prosperity of the Somaliland nation. We are not a party political organisation, but we feel strongly about the sovereignty of the nation, democracy, human rights and good governance. Central to these issues is the concept of constitutionalism which is taking root in our society and which is ultimately the best guarantee for the long-term stability and justice in any modern society.

Waxaanu dhugannay in sida uu dhig-ayo qodobka 154-aad ee Dastuurka Qaranku, aanay banaanayn soo jeedinta wax-kabeddelka iyo/ama kabidda dastuurku ay xambaarsanaato nuxur ka soo hor jeeda:

· Mabaadi’da shareecada islaamka.

· Madaxbannaanida iyo midnimada dalka (Israacsanaanta dhul ahaaneed).

· Mabaadi’da talo-wadaagga iyo hannaanka xisbiyada badan.

· Xuquuqda asaasiga ah iyo xorriyadaha qofka.

We note that under article 154 of the (interim) Constitution, no proposed amendment, which conflicts with the following can be made:

· The principles of Islamic Sharia.

· The sovereignty and territorial integrity of the country.

· Democratic principles and the multi-party political system.

· Fundamental rights and personal freedoms.

Waxaanu, sidaa darteed, derisney beddelaadda Dastuurka Qaranka ee dhawaan la soo jeediyey annaga oo eegayna mabaadi’daa kor ku xusan. Mabda’ ahaan, inkasta oo aanu oggolnahay in ay jiraan tallaabooyin lagu “toos-toosin” karo Dastuurka, nooma muuqato in Dastuurku u baa-han yahay isbeddel xooga ah (156 qodob oo lagu soo koobo 99) ka hor inta aan Dastuurka ummadda la soo hordhigin in ay taageerto oo afti laga qaado. Waxaanu dareenay in wax-ka-beddelka lasoo jeediyey loo arkey, sax iyo khalad kuu doono ha ahaa-dee, hindise ka yimid hal dhinac oo Qaranka keliya (oo ah waaxda fulinta ama Dawladda). Waxayna noola muuqataa in casharkaa ugu horreya ee laga baran karo arrintani siday u dhacday ay tahay in la sameeyo Guddi ballaadhan oo waaxyaha Qaranka oo dhan matala, hoggaankiisana ay hayaan waaxda xeer-dejinta (Baarla-maanka). Guddigaas oo loo xil saro in ay soo jeedintan bedellaada Dastuurka si deg deg ah u eegaan, Baarlamaankana ay u soo warbixiyaan.

We have, therefore looked at the proposed changes to the Constitution in the light of these principles. As a matter of principle, whilst we accept that there are some provisions of the Constitution which could do with “fine tuning”, we do not consider it so flawed as to necessitate it being drastically changed (from 156 articles to 99) before it can be put to the nation for endorsement. We note that the proposed changes have, rightly or wrongly, been seen as proposals emanating from one branch of the government (i.e the Executive), and it appears to us that the first lesson that can be learnt from this exercise, is the setting up of a genuinely representative Commission lead by the legislature to examine the proposals urgently and then to report back to Parliament.

Annagoo ku salaynayna baadhitaankii aanu ku samaynay wax-kabeddelka dastuurka (nuqliga nasoo gaadhay), waxaannu ku faraxsannahay in aannu xusno in aan la taaban qodobada dhigaaya dowladnimada, dhulka, iyo muqaddisnimada madaxbannaanideenna (qodobada 1aad ilaa 7aad). Waliba, sidaannu kor ku xusnay, cidna uma bannaana inay soo jeediso wax-ka-beddel ama kabid dastuurka oo ka hor imanaysa jiritaanka Somaliland. Sidaa awgeed, waxaanu soo dhawaynaynaa hadalkii Madaxwaynaha ee 29/8/99 uu ka yidhi arrintan. Waxaannu ku adkeeneynaa cid kastaa oo soo jeedineysa beddelaad la isku raaci karo in lagu daro fiqraad cusub qodobka 154aad oo caddeyneysa, si aan loogu murmin, in wax allaale wixi beddelaad ah ee nuxur ku keeneysa madaxbanaanida JSL aanay bannaaneyn oo aan la soo jeedin karin.

We are pleased to note that, on the basis of our analysis of the amendments (i.e the copy we have received), none of the articles which set out the sovereignty, territory and sanctity of our independence (i.e. articles 1 to 7) are touched by any of the proposals for change. Indeed, as we have noted above, no amendment of the constitution, which conflicts with the sovereignty of Somaliland, can be tabled by anyone. In this respect, we welcome the President’s speech on 29/8/99 on this issue. Nonetheless, we strongly recommend that, for the avoidance of doubt, any new agreed amendments should include an addition to article 154 which makes null and void any proposal or amendment which might affect the independence (madax-bannaanida) of Somaliland.

Waxaannu soo dhawaynaynaa beddelaadda qodobka 11aad ee Dastuurka, kaasoo hadda ku xaddidaya saddex tirada xisbiyada siyaasadeed ee dalka. Waxaanu aaminsahay in beddelkani tix galinayo mabaadi’dii dastuuriga ahayd ee lagu dejiyey shirarkii Borama iyo Hargeisa. In kasta oo ay tahay in laga digtoonaado wixii dhacay, oo lagu xisaabtamo casharadii laga dhaxlay habkii xisbiyada-badan, ee 9kii sannadood ee midowgii ayaanka darnaa ee Somaliland/Somalia, haddana waxaanu rajaynaynaa in aan lagu soo darin Masshruuca Xeerka Doorashada (Elections Bill) wax si aan habbooneyn u xaddi-daaya xisbiyada siyaasadeed.

We welcome the proposed changes to article 11 of the constitution, which currently limits the number of political parties to three. We believe that this change is consistent with the constitutional principles set by the Borama and Hargeisa Conferences. Whilst the lessons of the unbridled multi-party system in the first 9 years of the ill-fated union with Somalia have to be learnt, we hope that no arbitrary restrictions on political parties will re-appear in the newly drafted Electoral Bill.

Waxaannu kale oo soo dhawaynaynaa wax-ka-bedellidda iyo kabidda yar-yar, kuwaasoo inskata oo aanay aha-yn lagama-maarmaan, haddana keenaaya wanaajin. Waxaa ka mid ah, tusaale ahaan, tirtirida Qodobka 54aad oo dhigaya Ciqaabta Gudasha-la’aanta Waajibaadka Muwaadinka, oo aan habooneyn waqtigan ca-sriga iyo xuquuqda aadamiga. Waxaannu kaloo raacsanahay tirtirida qodobada 81aad iyo 95aad, kuwaasoo hadda dhigaya xaaladaha gaarka ah ee Madaxwaynuhu awood u leeyahay inuu kala diro labada gole. Tan kale kuma aragno wax dhibaato ah toostoosinta luuqadeed ee qodoboda qaarkood lagu sameeyey, sida beddelka loo soo jeediyey Qadobka 8aad (Astaan-ta Qaranka); qodobada 83aad iyo 90aad (kuwaasoo la xidhiidha awoodda iyo waajibaadka Golaha Guurtida, oo noqonaya iminka Qodobka 37aad iyo 43aad); qodobka 104aad (Golaha Wasiirarda, oo iminka noqonaya Qodobka 56aad); qodobka 146 (Magacaabista iyo Xilkaqaadista Madaxda Hay’adaha, oo noqonaya qodobka 89).

We also welcome some of the minor amendments, which, though not essential, are improvements. These are, for example, the deletion of article 54 which deals with the punishment for non-fulfilment of the general duties of citizenship which is not in line with modern concepts of human rights. Also we welcome the proposed deletion of articles 81 and 95, which currently set out the limited circumstances in which the President may dissolve the two Houses. Furthermore, we do not see any problems in some of the proposed textual improvements, such as the proposed changes to articles 8 (the national emblem, now to be art.8 of the new draft); articles 83 and 90 (relating to the powers and duties of the House of Elders, which are to be art.37 and 43); article 104 (the Council of Ministers, which will be art.56); and article 146 (Appointment of officers, will be art.89).

Waxaanu iswaydiinaynaa xikmadda ka danbaysa beddelaadaha qaarkood, kuwaasoo, sida ay annaga noola muuqato, aan ahayn qaar loo baahan yahay, danteenana dhibaato u keeni kara. Kuwaas waxa ka mid ah tirtirida qodobka 12aad, kaasoo dhigaya in Jamhuuriyaddu aqoonsan tahay, kuna dhaqmayso, sharciyadda iyo hanka caalamiga oo ay ka mid yihiin Axdiga Qaramada Midoobay iyo Baaqa Caalamiga ah ee Xuquuda Aadamiga (Universal Declaration of Human Rights), iyo in khilaafaadka siyaasiga ah ee abuurma lagu xallilo dariiq nabadeed iyo wadahadal. Waxaannu kaloo fahmi la’nahay sababta loo tirtiray qodobada 13aad ilaa 33aad iyo qodobka 58aad, kuwaasoo dhigaya waxa loogu yeedho “directive principals”, isla markaana loogu talogalay inay dowladda siiyaan talooyin iyo hagid dastuurka ku saldhigan.

We question the wisdom of a number of amendments, which, in our view are not only unnecessary, but will also be detrimental to our long-term interests, such as the deletion of article 12 which sets out the Republic’s adherence to international law and norms, including the UN Charter and the Universal Declaration of Human Rights, as well as other concepts as peaceful settlement of disputes. We also do not understand why it is thought necessary to delete articles 13 to 33 and 58, which set out what is often described as “directive principles” and which are aimed at providing a non-enforceable, but general formal constitutional guidance to the government

Waxaanu ka soo horjeednaa tirtirida qodobada 34aad ilaa 52aad, kuwa-asoo ku saabsan xuquuqaha iyo xorriyadaha aasaasiga ah; waxaanu waliba diidannahay sida loogu beddelay qodob kaliya oo aan kaafiyi karin waxyaalaha hadda ku cad 18kaa qodob. Dastuurku waa dhigaalka ay sax tahay, inuu caddeeyo xuquuqaha assaasiga ah, sidaa darteed waxay nala tahay in aanay haboonayn in qodob kaliya lagu soo koobo caddaymahaas. Midda kale beddelaaddani ma waafaqsana waajibaadka ay xeerarka caalamiga saareen Jamhuuriyadda, waayo waxay soo jeedineysa in ay xuquuqda aadamiga ah hoos imanayaan sharciyadda dalka, halkii ay la tiigsan lahayd xeerarka caalamiga ah sida hadda ku cad Qodobka 12aad ee Dastuurka.

We oppose the proposed deletion of articles 34 to 52 dealing with the fundamental rights and freedoms and their replacement with an unwieldy single article which is far inferior to the existing 18 articles in the current constitution. A constitution is the right document to declare these fundamental rights and the single article proposed is woefully inadequate. It also does not meet the Republic’s obligations under international law in that it seeks to place these rights under the current (and future) laws of the land, rather than the internationally accepted norms which are currently endorsed explicitly in the Republic’s Constitution under article 12.

Waxaannu aad uga walaacsannahay dhowr beddelaad, kuwaasoo horseedaya inay diciifiyaan awoodda Golaha Wakiillada. Tusaale ahaan, tirtiridda Qodobka 60(2), kaasoo hadda horjoogsanaya ku wareejinta awoodda xilka xeer-dejinta cid kasta oo ka baxsan Baarlamaanka, iyo dhowr beddelaadood oo la xidhiidha awoodaha iyo waajibaadka Golaha Wakiillada, gaar ahaan kuwa ku saabsan baadhista ama xogwaraysiga qorshaha dawladda, dhowridda Miisaaniyadda, iyo baabi’nta Guddiga Joogtada ah ee Golaha Wakiillada oo hadda xil ka saaran yahay daymada hawsha dawladda marka aanu Baarl-amaanku fadhiyin, iyo xilliga ay yimaaddaan arrimo kadis ah (in times of emergencies). Waxa kaloo tusaale arrintan ka ah, tirtiridda dhowrsanaanta u gaar ah xubnaha baarlamaanka (general immunity of members of Parliament) iyo tirtiridda awoodda Golaha Wakiillada keligood ay hadda u leeyihiin in ay go’aan ka gaadhaan in soo jeedin kasta oo beddeleysa Dastuurka loo baahan yahay iyo in kale.

We are seriously concerned about the series of amendments, which will have the effect of reducing the power of the House of Representatives. Examples of these are the proposed deletion of article 60(2) which currently bars the transfer of legislative powers to anyone outside Parliament and the various changes relating to the powers and duties of the House of Representatives, specially with regard to questioning the government’s programme, oversight of the Budget, and the abolition of the House’s Standing Committee which has currently oversight of governmental activity during the parliamentary recesses, and in times of emergencies. The removal of the general immunity of members of Parliament and the House’s initial veto power on constitutional amendments are other examples.

Waxaannu aad uga walaacsannahay in beddelaadaha qaarkood ay Waaxda Fulinta (the Executive - Xukuumadda) ka quwad weynaynayaan waaxyaha kale ee Xeerdejinta iyo Garsoorka. Taasina waa mid ka soo horjeedda mabaadi’-da awood-qaybinta qarankeenna. Taariikhdu waxay ina bartey khatarta ay leedahay Xukuumad awood weyn, sidaa darteed waxaannu ka digaynaa wax allaale wixii sabab la’aan kordhinaya awoodaha Xukuumadda Dhexe (Central Government). Arrintan waxaa tusaale u ah soo jeedinta in la tirtiro qodobka iska hortaagaya xubnaha Baarlamaanka inay noqdaan wasiiro ama wasiiro kuxigeen, iyo Guddiga Caddaaladda oo la hoos keenay Xukuumaddu.

We are seriously concerned that some of the proposals will have the effect of increasing the power of the Executive over the Legislature and the Judiciary, and, as such, are therefore contrary to the principles of separation of powers. History has taught us the dangers of an overweening Executive, and we would caution against any unjustified increases of the powers of central government. For examples it is proposed to remove the bar on members of parliament from being ministers/deputy ministers and the Judicial Commission will be brought firmly under the control of the Executive.

Waxaannu jecelnahay in la sii xoojiyo madaxbannaanida waaxda garsoorka, waanan cambaareyneyna beddelaad kasta oo wax u dhimi karta mabda’an muhiimka ah. Waxaannu qabna in ay muhiim tahay in Guddiga Caddaaladda, oo ku shuqul leh magacaabista iyo xil-ka-qaadista Garsoorayaasha maxkamadaha hoose, iyo ku-xigeennada Xeer Ilaaliyaha Guud (pro-curators), ay ahaato mid uu guddoomiyo, islamarkaana ay ka mid ahaadaan Garsoorayaasha Maxkamadda Sare, ee aanay xubnaha Xukuumaddu gacanta ku qaban. Waxaannu kaloo aaminsanahay in dhidibka madaxbannaanida garsoorayaasha ay tahay kursi waara (security of tenure). Waa arrin aad aannu uga walaacnay in Garsoorayaasha Maxkamadda Sare iyo kuwa maxkamadaha kale si fudud xilka looga qaadi karo.

We would like to see the independence of the Judiciary strengthened further and deprecate any of the proposed changes that might affect this important principle. We consider it important that the Judicial Commission, which oversees the appointment and removal of judges and procurators, should continue to be chaired by and include Supreme Court justices and not members of the Executive. We also believe that security of tenure is the cornerstone of the independence of judges. It is a matter of serious concern that justices of the Supreme Court and other judges can be removed from office so easily.

Waxaannu soo jeedinaynaa in dhammaystirka Dastuurkan kumeelgaadhka ah si dhakhso ah loo soo gebagabeeyo, oo sida Qodobka 152aad dhigayo la qaado waqti dhow Afti dadwayne. Aftidu waxay Dastuurka siin doontaa codka dadwaynaha, waxaaney caddeyndoontaa in ummadda Somaliland ay go’aansadeen aayo-ka-talintooda iyagoo ah dal xor ah oo madaxbannaan. Waxaannu kasoo horjeednaa tirtirista qaybta Qodobka 152aad, ee shegaya in la sameeyo Guddi qabanqaabisa Aftida, waxaanan codsanaynaa in si degdeg ah loo magacaabo Guddidaas. Waxaannu kula dardaarmaynaa Guddida Qabanqaabada Aftida iyo Dawladdaba inay qaadaan olole dadwaynaha lagaga jaahil saarayo Dastuurka. Waa inaynu soo dhawaynaa oo martiqaadnaa ilaaliyeyaal caalami ah, una isticmaalnaa natiijada Aftida horumarinta qadiyadeena ictiraafka adduunwaynaha.

We urge that the implementation of the interim Constitution be finalised quickly, and that the referendum under article 152 be held as soon as possible. The referendum will put the people’s stamp of approval on the Constitution and will attest to the will of the Somaliland people to decide their own destiny as an independent and free nation. We oppose the deletion of that part of article 152, which provides for the setting up of a Referendum Commission and we ask that the Commission be appointed soon. We urge that the Referendum Commission and the Government embark on a public education programme to explain the Constitution to the people. We should welcome international observers and use the outcome of the referendum as part of our case for international recognition.

Ugu dambayn, waxaannu Forum ahaan isku taxallujinaynaa meelmarinta iyo kor-uqaadidda jiritaanka iyo qaddiyadda Somaliland, waxaana aannu jecelnahay in aannu Jamhuuriyadeenna ku aragno hab dimoqraaddinimo oo hagaagsan. Faalladayadan iyo falanqayntan ku saabsan wax-kabeddelka Dastuurka ee lasoo jeediyey, sidaa darteed, waxay ku salaysan tahay mowqifkaas, waxaana aannu talooyinkan si kal iyo laab ah ugula dardaarmaynaa dhammaan ummadda Somaliland. Nuqli kan ka faahfaahsan oo ah faalada Somaliland Forum uu ka bixiyay beddelidda iyo kabista dastuurka ee lasoo jeediyey, waxaad ka heli kartaa warqadda hoos ku qoran.

Finally, we commit our Forum to the advancement of the cause of Somali-land, and we want to see the continu-ed development of a vibrant, healthy democracy in our Republic. Our comments on the proposed changes to the Constitution are, therefore, made with that objective in mind, and we wholeheartedly commend them to all Somalilanders. A more detailed description of this summary is provided below.

OPEN LETTER TO THE SOMALILAND GOVERNMENT, LEGISLATURE & THE PUBLIC ON THE PROPOSALS FOR CHANGES TO THE CONSTITUTION

1. We are an international forum consisting of Somalilanders living in the Diaspora who are committed, albeit from a distance, to the strengthening of the political identity, economic viability and general prosperity of the Somaliland nation. We are not a party political organisation, but we feel strongly about the sovereignty of the nation, democracy, human rights and good governance. Central to these issues is the concept of constitutionalism which is taking root in our society and which is ultimately the best guarantee for the long-term stability and justice in any modern society.

2. We are proud of the hard work that our communities have undertaken in establishing peace and in mapping out the future of our institutions in the three main national conferences in Buroa, Borama and Hargeisa. Both the National Charter and the Interim Constitution testify to our communities’ commitment to democracy, the entrenchment of human rights and the building of a state based on separation of powers between the three branches of government, with the essential checks and balance on the exercise of power. As can be seen in the preamble to the Constitution, these main guiding principles were succinctly listed in the Hargeisa Conference’s instructions to the Constitutional Working Party who, in consolidating the various draft proposals, were enjoined to consider the following:

a) The Islamic Sharia.

b) Conclusions from the various consultations.

c) The separation of powers of the state as between the legislative, the executive and the judiciary.

d) The decentralisation of the administration of the government.

e) Guarantees of private property rights and the protection of the free market.

f) Veneration of human life through the entrenchment of fundamental rights and personal freedoms.

g) Peaceful and proper co-existence with the states in the region and the rest of the world.

3. All these principles are reflected in the preamble and the 156 articles of the constitution, and article 154 further entrenched some of them, so that no proposed amendment, which conflicts with the following can be made:

a) The principles of Islamic Sharia.

b) The sovereignty (unity?) and territorial integrity of the country.

c) Democratic principles and the multi-party political system.

d) Fundamental rights and personal freedoms.

4. Any proposed changes to the interim Constitution must, therefore, be examined in the light of these principles, and the onus is on those who are proposing changes to justify them beyond peradventure.

5. We understand from the reports of the President’s recent speech on 29/8/1999, that the President said that when the Hargeisa Conference of the Communities approved the interim Constitution, it attached a rider stating that the Constitution had some shortcomings and will need improvements and corrections and that the three “councils” (Golayasha) (the two Houses and the Council of Ministers) should therefore meet and re-consider it before the Constitution is passed to the nation for approval. The President stated that when he suggested to the two Houses to set up a tri-partite Commission that can study the constitution and make proposals for any necessary changes, it was decided that the Council of Ministers should consider the Constitution and then pass their proposals to both Houses separately, who would debate the proposals and then decide which provisions they would accept. The President commented that it was, therefore, surprising to him that when the Council of Ministers’ proposals were submitted to the House of Representatives, “few” members embarked on a heated debate without discussing what has been deleted or added to the constitution and alleged that, among other things, the sovereignty of Somaliland shall be removed so as to lay the ground for the renunciation of the independence and separate existence of Somaliland. The President denounced these allegations as nonsense and mischievous. In this context, and for the avoidance of doubt, we strongly recommend that any agreed amendments should an addition to article 154 of the Constitution which makes null and void any proposals or amendments which might affect the independence “madax-bannaanida” of Somaliland.

6. Clearly, the proposed changes which reduce the 156 articles of the current constitution to 99 and which have significant implications for the nation have, rightly or wrongly, been seen as proposals emanating from one branch of the government, and it appears to us that the first lesson that can be learnt from this exercise, is the setting up of a genuinely representative Commission lead by the legislature to examine the proposals and then to report back to Parliament. We are conscious that the interim Constitution has to be put to the public in a referendum by the beginning of next year, and we consider it important that the referendum is held on time, as it will put the formal stamp of approval of the nation on this document which succinctly declares to the whole word that Somaliland’s sovereignty is sacrosanct and our territory is inviolable. As a matter of principle, whilst we accept that there are some provisions of the Constitution which could do with “fine tuning”, we do not consider it so flawed as to necessitate it being drastically changed before it can be put to the nation for endorsement. The work of the proposed Commission must, therefore, be completed speedily and the emphasis should be on essential corrections (such as the removal of the limit of three on the number of political parties), rather than on a wholesale revision, which, for a constitution adopted only two half years ago, is not necessary. We would also urge that, the appointed Commission should be given clear terms of reference and that it should be seen as being independent of government and be given a free hand in consulting as widely as possible.

7. We move on then to comment on the proposed changes. We found that Government’s proposals leave just over a third of the 156 article constitution (about 59 articles) unchanged, and roughly about 19 articles have minor or consequential amendments made to them. The remaining articles have all been changed, including 45 articles, which have been deleted. In our view, these changes go beyond correcting or fine-tuning (in Somali, kabid) and are more drastic, in their scope. We know that under article 153 of the Constitution, proposals for changes to the Constitution can be made by the President, having taken the advice of the Council of Ministers, or by a third of the membership of either the two Houses, but, we would suggest that, for the sake of continuity, compromise and consensus, any proponent of massive constitutional changes ought to, as a matter of practice and convention, seek wider consultation before tabling them. Our suggestion of an independent Commission is made, with this important principle in mind.

8. We are pleased to note that, on the basis of our analysis of the amendments (i.e the copy we have received), none of the articles which set out the sovereignty, territory and sanctity of our independence (i.e. articles 1 to 7) are touched by any of the proposals for change. Indeed, as we have noted above, no amendment of the constitution, which conflicts with the sovereignty (unity) of Somaliland, can be tabled by anyone. In this respect, we welcome the President’s speech on 29/8/99 on this issue. Nonetheless, we strongly recommend that, for the avoidance of doubt, any new agreed amendments should include an addition to article 154 which makes null and void any proposal or amendment which might affect the independence (madax-banaanida) of Somaliland.

9. We welcome the proposed changes to article 11 of the constitution, which currently limits the number of political parties to three and bars political parties that are based on regions or clans. We believe that this change is consistent with the constitutional principles set by the Borama and Hargeisa Conferences. The new article simply says that “Political parties and their structure shall be determined by a law”. Limits on the number of political parties contradict the fundamental principle in the constitution (article 11(1) and the preamble) that there shall be a democratic and multi-party political system. The deletion of the ban on parties which are either based on “regions” appears to be sensible, as well, as it would have been unworkable during the transition period from representation based on nominations by the various communities (beelaha) to one based on elections through political parties. Whilst the lessons of the unbridled multi-party system in the first 9 years of the ill-fated union with Somalia have to be learnt, we hope that no arbitrary restrictions on political parties will re-appear in the newly drafted Electoral Bill.

10. We also welcome the following minor amendments, which, though not essential, are improvements. The deletion of article 54 which deals with the punishment for non-fulfilment of the general duties of citizenship is in line with modern concepts of human rights, as punishments should only be carried out for non performance of specific legal duties imposed by legislation, and not for non fulfilment of civic responsibilities. Bad citizenship is not, per se, synonymous with criminality and specific laws cover conduct such as non-payment of taxes etc., which ought to be punished by law.

11. We also welcome the proposed deletion of articles 81 and 95, which currently set out the limited circumstances in which the President may dissolve the two Houses. In a “presidential” system, like ours, in which both the President and Parliament are to be directly elected, and which will be grounded on fairly extensive separation of powers, this residual power of the President appears to be incongruous.

12. There are also a number of very minor amendments which improve the text, but have no significant bearing on the meaning of the articles to which they relate. Examples are the proposed changes to articles 8 (the national emblem, now to be art.8 of the new draft); articles 83 and 90 (relating to the powers and duties of the House of Elders, which are to be art.37 and 43); article 104 (the Council of Ministers, which will be art.56); and article 146 (Appointment of officers, will be art.89). We do not see any problems in these textual improvements.

13. We also believe that the House of Representatives is the main legislative body, and whilst we decry the changes set out below, which we feel will diminish its powers, we do endorse the three ways in which the House’s position might be improved. Firstly, the proposed change to article 118 (the new art.70) means that, the Speaker of the House of Representatives shall gain his well-deserved place in the protocol of the country and will gain joint second place with the Speaker of the House of Elders, and after the President/Vice-President. Secondly, the changes to article 100 (the new art.51) means that that the Representatives can reassert their wishes on Bills rejected by the Elders by a simple majority, and not, as currently, by a qualified two-thirds majority. This amendment will strengthen the Representatives’ hand, and will re-emphasise their pre-eminence in the legislation field. “Turf wars” between two Houses in a bicameral system can be constitutionally difficult, and this will bring to an end speedily any major differences on Bills between the two House. Thirdly, the change to article 107, relating to the unusual security circumstances which might effect the holding of the election of the President/Vice-President, means that the decision as to whether the term of office of the incumbent(s) be extended, will not be left to the House of Elders only, and the House of Representatives will be able to participate in this important decision.

14. We support, in principle, the amendment to article 151(7) which relates to the laws passed by the previous governments which are still in force in the Republic. The Constitution currently accepts that all pre-1991 laws (which have not been repealed) shall be remain in force unless they are in conflict with Islamic Sharia or with the provisions of the Constitution (article 155). We know that this was a pragmatic decision to avoid gaps in legislation before new laws are promulgated. Unfortunately, this meant that laws passed by the Siyad Barre regime could still be in force until they are repealed. The amendment limits the laws which will be in force in the Republic to those which existed before the onset of the Siyad Barre dictatorship on 21 October 1969. We assume that the Government has worked out thoroughly the implications of this proposed change. In particular, we would urge the government to consider urgently all the laws or decrees which might have been issued in relation to international agreements or conventions and with which our Republic will still be bound under international law.

15. We question the wisdom of a number of amendments, which, in our view are not only unnecessary, but will also be detrimental to our long-term interests. For example, it is proposed that article 12 which sets out the Republic’s adherence to international law and norms, including the UN Charter and the Universal Declaration of Human Rights, as well as other concepts as peaceful settlement of disputes, respect for territorial integrity of others etc, be deleted. This article correctly accepts the international norm of state succession in respect of the treaties and agreements entered into by previous governments (although this could perhaps be better worded to include a commitment to settle by agreement or arbitration, some of the questions relating to state succession). It is a declaratory article that is found in most modern constitutions and sets out the minimum standards expected of any state that is aiming to claim its well-deserved place in the international arena.

16. We do not understand why it is thought necessary to delete articles 13 to 33 and 58, which set out what is often described as “directive principles” and are aimed at providing a non-enforceable, but general formal constitutional guidance to the government. Although they are, in effect, a “wish list”, the fact that they are noted in the Constitution underlines their importance to the nation, and indeed, some of them, such education, health, and the care of the disabled and the handicapped, are increasingly seen as “rights” (albeit, ones that can not be always met) ranking with civil and political rights. For example, the Ethiopian Constitution considers some of these as “economic, social and cultural” rights (art.41) and the rights of labour (art.42). If there is a concern that these principles might be misconstrued as importing immediate legal obligations on the Government which clearly it cannot meet, in the present circumstances, then this should be addressed separately as part of a grassroots dissemination of the provisions of the Constitution, which needs to be done, in any case, prior to the referendum next year.

17. We oppose the proposed deletion of articles 34 to 52 dealing with the fundamental rights and freedoms and their replacement by an unwieldy single article which is far inferior to the existing 18 articles in the current constitution. A constitution is the right document to declare these fundamental rights and the single article proposed is woefully inadequate. It also does not meet the Republic’s obligations under international law in that it seeks to place these rights under the current (and future) laws of the land, rather than the internationally accepted norms which are currently endorsed explicitly in the Republic’s constitution under article 12 (see above). The Republic already accepts the Universal Declaration of Human Rights (see article 12 and the recent 1997 pronouncements of the President in his meeting with Amnesty International) and, has (again, because of article 12(1) and the general principles of state succession) inherited from the last “Somalian” government the half hearted accession of that government (on 24/04/91) to the International Covenant on Civil and Political Rights. Under article 2(2) of the Covenant, states are required to “take the necessary steps in accordance with their constitutional processes … to adopt such legislative or other measures as may be necessary to give effect to the rights recognised” in the Covenant. Furthermore, no derogation from some of the rights (such as the right to life, art.6, the right not to be subjected to torture, art.7, or to slavery, art 8 etc) is allowed, so any state laws which go contrary to these rights, even in times of public emergency, will not be considered valid under international law. The importance of clear constitutional guarantees on human rights has been underlined not only by our recent struggles against oppression, but also by the Borama Conference of the Somaliland Communities (1993) where it was emphasised in article 8 of our National Charter (Axdi Qarameed). Also in the Hargeisa Conference (1996/97), the Constitutional Commission were enjoined, among other things, to give regard to veneration of individual life through the entrenchment of fundamental rights and freedoms. Besides the intrinsic importance of human rights guarantees to our people, these constitutional provisions are also important for our international standing, specially at this crucial time when we are seeking to gain our legitimate place in the international arena. It is worth pointing out, for example, that the EC Guidelines on Recognition of the New States in E. Europe emphasise respect for the rule of law, democracy and human rights, and we are not going to advance our cause by cutting back on the expressed constitutional rights and freedoms of our citizens. A quick survey of the constitutions of neighbouring African countries shows that none of them leave fundamental human rights to one article and the trend is to have lengthy articles covering all aspects of human rights. For example, the Ethiopian Constitution has no less than 31 articles (art.14 to 44) covering all human and democratic rights; the Eritrean Constitution, 16 articles (art.14 to 29); the Sudanese, 15 articles (art.20 to 34); and the Ugandan Constitution, an impressive 39 articles including the establishment of a Human Rights Commission (art.20 – 58). The “Somalian” Constitution of 1960 included 16 articles on rights and freedoms (art 16 – 30) and even Siyad Barre’s contained 15 (art 20 – 34) !!!!.

18. We are seriously concerned about the series of amendments, which will have the effect of reducing the power of Parliament and, specially, that of the House of Representatives, which is, after all, as described in the article 62 of the Constitution, the “first body of the country’s legislative”. Examples of these are as follows:

1. The proposed complete deletion of article 60(2) which currently bars the transfer of legislative powers to anyone outside Parliament will not simply remove the ambiguity inherent in this section, but if passed, would have the consequence of legislative powers being exercised by the Executive. There should be no room for laws passed by Executive “decree” without parliamentary prior delegated approval and subsequent oversight. Clearly, Parliament, under specific Acts may delegate limited powers to the Executive or to Local Government to issue some regulations or bye-laws in specific circumstances, but the current article 60(2), is simply a manifestation of the principle of separation of powers and confirms the supremacy of Parliament in the legislative field. The slight ambiguity in it can be removed by a rewording such as : “Except as provided in this Constitution, no person or body other than Parliament shall have power to make provisions having the force of law in the Republic of Somaliland except under express authority conferred by a law passed by Parliament”.

2. The changes in the powers and duties of the House of Representatives (article 78 – new article 34) mean that the House will lose the following powers:

a) The power to refer back (with reasons) the programme of the Government after debating it is to be removed.

b) The power to forward to the Government advice and recommendations on general policy and leadership, which the House has recently done very effectively in its last session.

c) The power to summon named ministers and officers, rather than, as proposed, summoning “the Government and public agencies” to appear in front of them, presumably with the choice of who should actually appear on behalf of the Government/public agency being left to the discretion of the latter.

d) The power to “ratify governmental agreements and treaties including political, economic and security agreements or those agreements involving financial commitments which have not been covered in the Budget, or which will involve the promulgation or amendment of a law”. The new art 18(4)(c) leaves to joint sittings of the two Houses to discuss proposals to ratify international or regional treaties, but there are other agreements (e.g. bilateral agreements between Somaliland and a specific other country or, for that matter, between the Government and external corporations) which do not fall within the new art.18 and would not therefore benefit from parliamentary oversight. Agreements, which might incur expenditure outwith the Budget, also, need parliamentary approval.

3. The deletion of article 79 and changes to article 80 also have implications for the House’s oversight of financial issues. We are still going through a transitional and difficult period, and the Hargeisa Conference, in including these partly declaratory articles, might have had in mind the serious consequences of unregulated printing of money or other financial imprudence. Most constitutions give parliaments the right to approve a budget, which also carries the implication that they may reject it or amend it. If there is concern about the House of Representatives proposing expenditure in areas which have not been proposed by the Government, then there could be a specific provision to address that issue. Parliament needs to have strict oversight of the budget and the provision that all proposed expenditure outwith the budget has to be brought to its attention is an important element of the checks and balances in a democratic state. .

4. The proposed abolition of the Standing Committee of the House of Representatives, whilst that of the House of Elders is retained, albeit with a reduced membership, will reduce the House of Representative’s oversight of governmental activity during the parliamentary recesses, and in times of emergencies. The Government has recently justified this on the basis that the House of Elders has a special role in dealing with peace and security and needs delegates that can be sent to deal with exigencies. In the long run, a system of select committees who specialise in various subjects might be the answer.

5. The parliamentary oversight of the emergency actions of the President is also being severely curtailed. Under article 117, the President has power to issue emergency decrees when the House of Representatives is not in session or cannot reach a resolution urgently and there are compelling circumstances which endanger the security of the country and law and order. But, these emergency decrees must be approved by the Standing Committees of the two Houses within seven days; or if the Committees reject the decrees, the latter shall be presented to a joint sitting of the two Houses within 45 days, who may approve them by a simple majority. Also, as a further check, emergency decrees must be reviewed once every six months by the two Houses whose resolutions will be passed by a simple majority. With the abolition of the House of Representative’s Standing Committee, the decrees shall now be presented straight to the first sitting of Parliament who may approve them by a simple majority, and the requirement for a parliamentary six monthly review is being deleted. The current provisions in article 117 are necessary measures in a democratic society where law making by presidential decree should be very strictly controlled and monitored and there is a mechanism for the regular review of emergency legislation so as to ensure that such laws do not outlast the conditions that necessitated their passage. Even the “Somalian” Constitution enjoined the President to submit any emergency decrees to the National Assembly within 5 days, and the Assembly had to decide within 30 days to “convert” the decree into law. More importantly, if the conversion was not done, the decree ceased to have effect ab inito (i.e. as if it never existed).

6. The proposed amendment to article 102 appears to remove the general immunity of members of Parliament (of both Houses). Instead of reducing the current immunities and privileges of members of Parliament, there is a good case for improving them and making it clear that no member may be arrested or prosecuted for opinions expressed or statements made by him at any meeting of the House or its committees or in connection with his duties as member of Parliament.

7. Under article 153, the House of Representatives has an enviable and exclusive power to decide in the first instance, by a simple majority vote whether any amendment to the Constitution (proposed by the Government, or a third of the members of either House) is necessary, and if they deem it that it is not, then the proposal cannot be tabled again for a period of 12 months. This important initial veto power of the House is to be removed (see the new article 96) and the House of Representative will then have exactly the same power as the House of Elders in respect of constitutional amendments.

18. We are seriously concerned that some of the proposals will have the effect of increasing the power of the Executive over the Legislature and the Judiciary, and, as such, are therefore contrary to the principles of separation of powers. History has taught us the dangers of an overweening Executive, and we would caution against any unjustified increases of the powers of central government. Examples of some these proposals are:

1. Article 119(5)(b) (the new article 71) which bars members of parliament from being ministers/deputy ministers is to be deleted. The Preamble to the Constitution and the National Charter (article 9) are both very clear about the separation of powers in our “presidential” and bicameral system of government. It is therefore essential that members of legislative should not be eligible to serve in the Executive, and vice versa. After all, there is nothing stopping a Member of Parliament or a minister from resigning and then seeking a new career. Indeed Article 9(2) of the Charter explicitly stated that if a member of the two Houses was appointed as a minister, he will immediately lose his seat in the House. In our “presidential” system, the proposed backdoor introduction of some of the elements of a “parliamentary” system is likely to increase the power of the Executive over the Legislative through the largesse of ministerial offices.

2. The composition and chairing of the independent Judicial Commission (article 131) is also to be changed (the new art.83). It is proposed (and, according to recent reports, this has already been implemented!!!) that the Commission will now be chaired by the Minister of Justice (instead of the Chairman of the Supreme Court) and that there will no longer be any members from the Supreme Court (currently two Justices and the “Chief” Justice are members). The proposed chairing of this important Commission, which deals with the appointment and disciplining of judges and the procuracy, by a Minister goes counter to the expressed principle of separation of powers. It is also highly unusual that this Commission which is responsible for the appointment and removal of judges will no longer include any justices of the supreme court, or for that matter, any other judge - this is all the more strange, in the light of the retention of the membership the Attorney General.

3. The responsibilities of the Judicial Commission (article 132 – the new art.84) have also been amended slightly to indicate that they are responsible for the “advice” on appointment or removal of judges (other than Supreme Court justices), and the deputies of the Attorney General. The insertion of the word “advice” suggests that someone else (the President? the Minister?) may make the final decision. If that is the case, then this is another power which the Executive will assume, and which, unlike the appointment of the Supreme Court justices and the Attorney General, will not be overseen by Parliament.

4. The proposed change to the current impeachment process for ministers and deputy ministers under article 121 (the new article 73) means that if the President is not satisfied with the information and allegation put to him by the Attorney General in connection with the possible impeachment of a minister/deputy minister, he can simply instruct the Attorney General to drop the charges. The current procedure is that, in such a situation, the President shall submit the information and his conclusions to the House of Representatives, who will reach a decision about the matter by a simple majority.

19. We would like to see the independence of the Judiciary strengthened further and deprecate any of the proposed changes that might affect this important principle. We consider important that the Judicial Commission, which oversees the appointment and removal of judges and procurators, should continue to be chaired by and include Supreme Court justices and not a member of the Executive. We are aware of a number of countries where the Executive is represented or chairs similar committees, but it is unheard of for such committees not to include any judges at all. In any case, we have opted for a high degree of separation of powers in our governmental institutions and our Judicial Commission ought to be, therefore, independent of the Executive and their decisions must not be overruled by the latter. We also believe that security of tenure is the cornerstone of the independence of judges. It is a matter of serious concern that justices of the Supreme Court and other judges can be removed from office so easily. Judges (especially senior ones) are normally appointed (where they are not elected) to secure positions and are only removed either for mental or physical incapacity or misbehaviour, or if they have reached their retirement age. Provisions setting out security of tenure are in most constitutions and go back to the British Act of Settlement 1701 which set out that judge’s commissions were to be made quamdis se bene gesserint (so long as they behave themselves), “but upon the address of both Houses of Parliament it shall be lawful to remove them” i.e., they could only be removed for misbehaviour. An example of a modern Constitutional provision in Africa is section 98 of the Constitution of Zambia, which sets out a retirement age for Supreme Court and High Court judges of 65 years and notes that he or she may only be removed from office, but after a tribunal investigation, only “for inability to perform the functions of the office, whether arising from infirmity of body or mind, incompetence or misbehaviour”. Even the Constitution of “Somalia” included an article (96(3)) which made it clear that judges “shall not be removed or transferred except in the cases specified by law”. Our Supreme Court is also the Constitutional Court and will have to make important decisions relating to the constitutionality of governmental action, and, in due course, may also have to adjudicate on electoral matters. Judges ought to be able to exercise their judicial functions without being subject to the capricious power of the Executive. In this respect, we are surprised at the proposal to reduce the legal experience required for appointment to the Supreme Court (from the current requirement of 20 years to 5 years – article 130 and the new article 82), and we are concerned about the effect that this may have on the quality of the appointees.

20. We urge that the implementation of the interim Constitution be finalised quickly, and that the referendum under article 152 be held as soon as possible. The referendum will put the people’s stamp of approval on the Constitution and will attest to the will of the Somaliland people to decide their own destiny as an independent and free nation. We ask that the Referendum Commission mentioned in article 152 be appointed immediately and we, therefore, oppose the deletion of this provision (in article 152) relating to the Commission (the new article 95). We urge that the Referendum Commission and the Government embark on a public education programme to explain the Constitution to the people. We should welcome international observers and use the outcome of the referendum as part of our case for international recognition.

21. Finally, we commit our Forum to the advancement of the cause of Somaliland, and we want to see the continued development of a vibrant, healthy democracy in our Republic. Our comments on the proposed changes to the Constitution are, therefore, made with that objective in mind, and we wholeheartedly commend them to all Somalilanders.

SOMALILAND FORUM

November 1999