By Faisal Roble
The renowned Somali playwright Hassan Sheikh Muumin once rhetorically posited the polemic question of “What is there that can heal a sickened medicine? (Hadday Dawo bukooto maxaa lagu daweeyaa?) Uttered in an era of an authoritarian government when the body politic of Somalia was rotten from top down, the playwright was expressing the deep seated resignation of a nation whose leaders constantly wronged its people.
In the same token, who in God’s name can bring about a government in Somalia that is based on the rule of law when the very Parliament that created it habitually breaks it?
A habitual breaking of the law with impunity in Somalia is possible only because of the simple fact that those sitting on position of power are beholden not to the rule of law but to a notorious political calculus called 4.5 clan power-sharing. Once seated, clan representatives like the speaker of the Parliament are free to break the law at will.
On an uneventful day of July 30, 2017, the stunted Somali Federal Parliament broke the law once again under the tutelage of its geriatric chairman, Mr. Mohamed Jawari.
This past Sunday, Mr. Jawari wanted to usurp power and carry out duties that the constitution explicitly reserves within the domain of the Prime Minister – hiring and firing cabinet members.
Overstepping his speakership’s authority is not the first nor will it be the last time, unless the nation codifies its parliamentarian procedures to contain megalomaniac politicians who are in positions of power. Without instruments in the books to restrain opportunistic politicians, rule of law will be undermined brick by brick.
Mr. Jawari has been at the helm of the fledgling Somali Parliament and its 270-strong body since 2012, during which time multiple irregularities (too many to list them here) in the governance of Somalia’s fragile recovery and reconstruction have been committed.
One of the most attention-grapping irregularities that took place under Jawari’s leadership happened when Jubbaland was seeking statehood within the Federal framework in 2015. To kill Jubbaland’s spirit to become the third state after Somaliland and Puntland, Mr. Jawari spearheaded an ill-fated motion to undermine Jubbaland’s statehood.
Mr. Jawari’s move at the time was in total contravention to Article 50(b), (c), (d), and (g) whose objective is to arbiter federal power-sharing and establish boundaries of separation of different centers of authorities. In the constitution, one of the most sacred articles is Article 50 which established the federal power-sharing. Through a fake motion, he tried to circumvent that article.
In his botched battle against Jubbaland, Mr. Jawari instigated an unwarranted strife between Jubbaland and Villa Somalia and then turned around and sided with Villa Somalia by orchestrating a fake motion to undermine Jubbaland.
His latest action, which seeks to fire a member of the executive branch, Abdirahman Hosh, Minister for Constitution, pits the Parliament against the Executive Branch. Mr. Hosh is undoubtedly one of handful Somalis in the country that can legitimately boast to have adequate professional training in the field of law. He is also a colorful activist with large followers among the bourgeoning Somali elite.
But the Speaker’s move to oust a seating minister is a serious affront mainly to the Prime Minister and the President for the simple reason that all ministers are hired, then if need be, fired only by the Prime Minister.
Under the pretext of subpoena issued to Mr. Hosh to appear in front the parliament and testify on a contentious issue related to unresolved parliamentary seats, Mr. Jawari overstepped his authority. Simply put it, Mr. Hosh is not in contempt of the Parliament’s subpoena since he did not refuse to appear at the right time.
All that Mr. Hosh did was to ask for a postponement of the hearing for medical reasons. Instead, the speaker of the Parliament presided a vindictive session without the presence of Mr. Hosh.
Mr. Jawari should have given the Minister ample time to attend to his personal business, reach with him an amicable time and then proceed to a hearing that is transparent both to the public and to Villa Somalia.
Three extensions are normal and most parliamentary procedures give witnesses enough room and reasons not to decline to testy. However, Mr. Jawari played “I got-you-game,” and that is not a role to be played by the highest law maker of this broken nation.
Through a bogus and hastily organized hearing that did not stand on any grounds, the speaker tabled a “recommendations” on “reconsidering” whether Minister Hosh continues serving the nation in his capacity, or removing him from the cabinet roster.
While writing this opinion, I tried to consult and therefore searched whether there is any procedures this body has constructed since Mr. Jawari took office in 2012. None whatsoever! And this is a dereliction of duty on the part of the speaker since Article 68 of the Constitution calls upon its leadership to establish “Rules of Procedure of the House of the People of the Federal Parliament.”
After 5 years, Mr. Jawari has yet to lift a finger to codify the architecture of Article 68. He rather chose to carry out the Parliament’s business informally (Xeer jajab ayuu ku shaqeeyaa). And as such, he is the accuser and the arbiter of the case of Mr. Hosh against the Somali Parliament.
The Speaker’s usurpation of power is a direct slap in the face of the Prime Minister in that under Article 97, Section 3, the power of hiring and firing a member of the executive team, aka cabinet members solely rests with the Prime Minister who is nominated by the President and duly confirmed through a transparent public hearing by the parliament.
“The Prime Minister shall appoint deputy prime ministers, ministers, state ministers, and deputy ministers. Those eligible for membership of the Council of Ministers may be, but shall not be limited to, members of the House of the People of the Federal Parliament.”
Mr. Jawari has no authority by any stretch of the imagination, as far as the Draft constitution is concerned, to either hire or fire a member of the executive branch. So far we see that he is distorting the tenants of Article 69, section c, which states that following:
“The House of the People of the Federal Parliament has the authority to review the duties of any official who does not respond when summoned by the House of the People of the Federal Parliament.”
Mr. Hosh never declined to respond to the subpoena sent to him. As far as we know he responded to it in an expeditious manner and informed the speaker’s office that he will come and attend a hearing once he completes a pre-scheduled medical appointment outside the country.
Even if Mr. Hosh declined to respond to the subpoena, the Draft constitution only empowers the Parliament in as much as it can review the Minister’s duties and his work. In nowhere in this Article does the constitution empowers the Parliament to be in a position to fire a minister. What the speaker could do, if not satisfied with how a given minister is discharging his/her duties, is to confer and confide with the Prime Minister and register complaints.
The intent of the framers of the constitution by including Article 69 (c) in the Draft constitution was to mainly give the Parliament the role to confirm or deny the seating of a given cabinet in the early stages of the formation of a government; it also intended to give the parliament a role to seek and receive updates on matters that the executive branch tackles regularly, including but not limited to economic plans, budget issues as well as high profile legal matters. The framers never meant to give the speakership a supreme hand to hire or fire members of the executive branch. That job without any exceptions rests with the Prime Minister.
Therefore, if Mr. Jawari and his allies wanted to get an official assessment of the fate of eight contentious additional parliamentary seats whose fate is already decided by the Supreme Court of the country, they should do so by contacting Villa Somalia. As a member of the cabinet, Mr. Hosh assured the Speaker’s office that he will appear for a hearing at the most opportune time. And that should have settled the matter.
In order not to stray the country from its recovery course, the Draft constitution empowers the Parliament under Article 69 to issue subpoena and summon any member of the executive branch for questions, updates and review of a national project carried out by the executive board.
This limited authority under Article 69 is more of an informational and participatory role intended for the parliament member in the governing of the country so that they are in the know of how the executive branch is discharging its broad authorities.
A limited authority to review and seek update cannot, and shall not, substitute the explicit powers given to the Prime Minister under Article 100 (a), (b), and (c) in that the Prime Minister is:
“(a) The Head of the Federal Government
(b) Appoints and dismiss members of the Council of Ministers
(c) Present the Council of Ministers and government program before the House of the People of the Federal Parliament to seek their endorsement.”
Once Jawari and his body had endorsed Prime Minister Khayre’s cabinet, they have no additional authority to unseat them.
Mr. Jawari has walked on a slippery slope – usurping the powers of the Prime Minister. If this illegal remains unchecked, it would seriously undermine the constitutional framework of separations of powers between the executive, legislative, and judicial branches of the Somali Federal Government. If today the speaker can get rid of Mr. Hosh, who will be next is a worrisome thought to entertain. (Ninkii Qayrkii loo xiirayow so Qoyso Adiguna).
Speedy recovery and a full reconstruction of the collapsed state of Somalia is only possible if and when the constitution is respected and fairly implemented.
Faisal Roble, a writer, political analyst and a former Editor-in-Chief of WardheerNews, is mainly interested in the Horn of Africa region. He is currently the Principal Planner for the City of Los Angeles in charge of Master Planning, Economic Development and Project Implementation Division.
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