Constitution:  The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and design of the Government, laying the basic principles to which its internal life should conform, organizing the Government, and regulating, distributing, and limiting the functions of its ministries or departments, and prescribing the extent and manner of the exercise of sovereign powers.  

I hope that the ruling group in Addis Ababa, the International Community, the new ‘illustrious’ Somali peace camp, and most importantly the Somali public will understand this definition. The order of the Government and the written instrument agreed upon by the people of the nation ensure that there are reciprocal controls and balances, which is the reason that some governmental bodies and agents can only make proposals for an official, while others can directly appoint officials. The constitution must control all the institutions covered by it until it shall be changed by the authority which established it.

Proposal: An offer; something proffered; an offer, by one person to another, terms and conditions with reference to some work or undertaking, or for transfer of property, the acceptance whereof will make a contract between them; indication by one person to another of his willingness to enter into a contract with him on the terms that are implicit in the contract.

For example, the appointment of a prime minister (PM) by a president implies that the PM should fulfill the president’s plan, as should a minister proposed by the PM and appointed by the president. If you examine commentaries on the Italian constitution, this is not implicit, but explicit (an infinite proposition is equivalent to a general one).

Appointment: The designation of a person, by the person or persons having authority, therefore, to discharge the duties of the same office or trust (power of appointment); the exercise of a right to designate the person or persons who are to take the use of real estate; Office or Public Functions: the selection or designation of a person, by the person or persons having authority therefore, to fill an office or public function and discharge the duties of the same.

The term “appointment” is to be distinguished from election, because “election” to office usually refers to a vote of people, whereas “appointment” refers to designation by an individual or group. 

Power of appointment: A person or authority conferred by one person by deed (or law) or will upon another to appoint, which is to select and nominate; the person or persons who are to receive and enjoy the same privilege.

The people who elect individuals to a position are hirers and have power to withdraw their confidence. The person who appoints an appointee is the appointer and can dismiss his appointee. 

 Appointee: A person who is appointed or selected for a particular purpose; as the appointee as under a power of appointment is the person who is to receive the benefit of the power, as he has right to enjoy the benefit, he is subject to discharge, if he does not accomplish his duties to which he/she was elected.  

The Italian King Vittorio Emmanuelle the III appointed Benito Mussolini to the position of Prime Minister, probably in 1921.  Since he received a relative majority in the election, he was forced to create a coalition government; however, Mussolini, a founder of fascism, had slowly eliminated the political parties, assassinated many politicians, banned all non fascist media, and arrested hundreds and thousands of citizens that he believed to be antifascist. His Majesty, the King had never realized what was happening before July 1943. After the war in 1948, the existing political forces of Italy decided to hold a referendum as to whether Italy would be a Kingdom or a Republic. The Italian people punished the royal family, because of its connivance with Mussolini who ruled despotically for 21 years.

Equally, Marshall Hindenburg, who appointed Adolph Hitler as Prime Minister and head of a coalition, did not stop him, when he was on the verge of beginning the Holocaust, and his very bloody dictatorship, though the old Marshall fell sick and died quickly. However, the King was punished, while the Marshall was recriminated post-mortem. The same criticism will befall any head of state that does not make strong decisions in a time in which the democratic institutions of a given country are in danger or peril.

Not only as a normal procedure, but also ethically and legally, the government fell when the overwhelming majority of the ministers resigned from the government. It was immoral on the part of the PM and the other few to believe that they were still ministers and hold public positions.

Article 39

1) There shall be a President of the Republic, who shall be:

a)  The Head of State

b)  Commander-in-Chief of the Armed Forces

c)  Symbol of National Unity

2) d) The powers of the President shall be exercised in accordance with the Charter and the      Laws of the land;

3) The President shall not hold any other office for gain.

2)-h-The President shall appoint and dismiss the Prime Minister and/ or dismiss the government  if it fails to obtain the required vote of confidence from Parliament, or fails to fulfill its tasks.

Article 49 paragraph 2 in its subsections a and b recites: a) the term of office of the Prime Minister shall continue until he/she dies, resigns or is dismissed from office; or

b) Until another person is appointed to that office. Therefore, we can understand that he/she is subject to dismissal.

Article 53 no. 3 establishes that the Council of Ministers shall be accountable to Parliament for all things done collectively based on the principles of collective responsibility. This effectively did not happen, and is not happening.

In the case that the Government of the Transitional Federal Republic does not fulfill the provisions of article 11 from paragraph 1 to paragraph 10, the Government (executive power) will fall automatically from power as provided by transitional charter. Moreover, the appointment of ministers and of high government officials by the PM or by a minister without the approval and signature of the Head of State is a violation of the Charter itself. Likewise, the fact that the violation of the democratic principles provided by the Charter is a crime which cannot be unnoticed, knowing where the dictatorship has taken us for the last 48 years.

Paragraph two of article 51 states, “The President may not dismiss the Prime Minster, or the deputy Prime Minister during the life of Parliament under any circumstances other than those contemplated under clause one of this article.” However, the paragraph does not say “must not” as is customary.

Besides all other reasoning, he who has appointed the Prime Minister in his sole discretion without any binding recommendation or proposal can resort to article 71 paragraph two of the Charter, which states,“The 1960 Somali Constitution and other national laws shall apply in respect of all matters not covered and not inconsistent with this Charter.” Article 78 of the 1960 Constitution establishes in its third paragraph that “the Prime Minister shall be appointed and dismissed by the President of the Republic. The fourth paragraph of the same article establishes that“the Ministers shall be appointed and dismissed by the President of the Republic.”

 Paragraph 5 of the same article establishes that “Before assuming their functions, the Prime Minister and Ministers shall take the following oath of loyalty to the State before the President of the Republic: In the name of God I swear that I will discharge faithfully my duties in the interest of the people and will abide by the constitution and the laws.” This means that the Prime Minister, Ministers, and Under-Secretaries are not only subject to dismissal of the Parliament, but also to the President’s dismissal.    

Recently, the pseudo and fundamentalist Prime Minister dismissed the Benadir Administration without informing he who appointed it. Now, two days ago, he has appointed his own Administration without a collective decision by the Council of Ministers as provided by paragraph 3 of Article 53. Paragraph 6 of the same article provides that “the Council of Ministers shall set the general policy of the government in accordance with the Charter and laws of the land.” The Head of State did not even sign such a dismissal document; therefore, because of the lack of a collective decision of the Council of Ministers, and the signature of the Head of State, it is void and null and has no legal effect whatsoever.

The recent fiasco in Baidoa has shown the illegal behavior of the so called PM and the Speaker of Parliament.  From a law perspective, in order for parliament to conduct business, there must be a quorum, “a quorum is the minimum number of members of a deliberative body necessary to conduct the business of that group.” In the case of the current Somali Parliament, the number necessary for a quorum is 139 members, and to date that number has not been variably achieved in any of the sessions since the IGAD summit in Nairobi. Therefore, motions or decisions without a verifiable quorum are legally null and avoid. Additionally, nowhere in the world does a motion pass in Parliament without it being in writing first and tabled for discussion, especially important ones such as a motion of confidence and the adoption of governmental treaties and agreements. Finally, there is simply no provision in the Transitional Federal Charter or the 1960 Constitution, which allows cabinet appointments to be presented to Parliament for approval without a Presidential signature.    

We have seen the definition of the Constitution and its role and effectiveness. We have also seen the definition and the difference between proposal and appointment. We have mentioned the omission of Italian King, Vittorio Emmanuelle, and the short lapse of the good Marshall Hindenburg of Germany.  We have seen that the President is a symbol of National Unity, Head of State, and custodian of the Constitution. We have, moreover, observed that the Prime Minister has deprived the Council of Ministers of the constitutional collective responsibility, taking refuge in a personal dictatorship. It has been pointed out that the Prime Minister has sided for the fundamentalists, when he said that Somalia should be managed or ruled according to the Islamic Sharia. 

For all the reasons (à cause de toutes ces raisons) expressed in this note and the violations of the democratic principles of the Charter, the President of the Republic can dismiss the Prime Minister, on the basis of articles 71 of the Charter and article 78 of the Constitution of 1960, as well as the different violations of the provisional National Charter, hopefully before it is too late to save this country.

Ecole Ercoli

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I Mr. E. Ercoli, believe the current dispute in the TFG is legal, not piety politics as some in the international community are framing it. My aim is to advocate for a legal settlement, based on the rule of law.
Ercoli can be reached at mohamedm81@gmail.com

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