Somaliland: High Court Rejects NEC’s Judicial Review

In regards to laws, the Supreme Court does not give legal advice, but rather have a role in interpreting the laws.

It is important to bring attention to the true picture of these elections in question and it appears that the Constitutional Court has chosen not to do so. The decision it made is merely a superficial dressing for the real, burning question.

There is currently no law in place – in situations like this – that specifies which of the two upcoming elections must be held first and considered to be a priority.

And as long as that void is not filled but kept under the rug, the political impasse would remain to continue for the foreseeable future, and Somaliland elections concert – featuring the president the House of Representatives, the Elections Committee, the newly registered 13 political associations vying to become full fledged national political parties, and the old political parties whose tenure has expired – wouldn’t yet be close to its end. The play’s contentious episode is known to the actors, but they have not yet shown it to the audience.

As it is now, Somaliland NEC is between a rock and a hard surface

 

In light of the High Court’s decision, if the president and the NEC attempt to bring forward the party election while delaying the presidential election, they have consciously chosen to plunge the nation into a political crisis that could most likely lead to unneeded uprisings in many parts of the country.

The only option for resolving this problem is for the parliament to finalize the amendments to electoral laws they have before them. This would make sure that every action would be legal.

It is an obligation for them but not a choice to perform their sworn duties in accordance with the Constitution..

If the Parliament chooses to become an obstacle rather than a venue for advancing Somaliland’s democracy and ignores the issues that prevent elections, there is a provision in the Somaliland Constitution that makes it possible for the members of the House of Representatives to be removed.

Article 56 of the Somaliland Constitution deals with the “Dissolution of the House of Representatives”, and its clause 4 says that “The House of Representatives may also be dissolved by the President after the public has agreed in a national referendum organized by the Constitutional Court, to the reasons for the dissolution advanced by the President” while clause 6 of the same article adds “When the President considers … the result of the national referendum under Clause 4 of this Article, he shall promulgate a Presidential Decree dissolving the House of Representatives and at the same time setting out the date of the election of the new House, which shall take place within 60 (sixty) days.”

The Somaliland Constitutional Court’s decision regarding the Somaliland NEC’s request for legal interpretation can be found in the translation from Somali furnished below.

 

 

To: Somaliland National Electoral Commission (NEC)

On July 10, 2023, the Constitutional Court of the Somaliland Republic, consisting of the following justices and Sahra Ismail Abdillahi – the court’s secretary – convened to decide on the National Electoral Commission’s request for a judicial interpretation dated on July 4th of this year

Chief Justice and the Associate Justices:

• Chief Justice Adam H. Ali Ahmed
• Associate Justice Mohamed Omar Gelleh.
• Associate Justice Abdiqadir Ahmed Mohamud
• Associate Justice Mohamed Farah Saeed.
• Associate Justice Abdirahman Hussein Aynan.
• Associate Justice Yahye Ali Idris Member.
• Associate Justice Abdullahi Abdi Adan.
• Associate Justice Abdirahman Hassan Noor

Laws referenced by the court in its decision

Somaliland Supreme Court

Having seen:

The request for judicial interpretation dated July 4, 2023 submitted by the Somaliland National Electoral Commission

Having reviewed:

Article 98 of the Constitution of the Republic of Somaliland, Clause 1, Letter (b) that reads as follows:

ARTICLE 98

1. The judiciary has exclusive powers: –

b. To interpret the meaning of the laws enacted by the constitutional legislative bodies and emergency degrees in accordance with the Constitution.

Having reviewed:

Article 15 of the Judicial System Act – Law No.24/2003 – Clause 1, Letter (b) that reads as follows:

Article. 15. Powers of the Constitutional Court

1. The Constitutional Court has the power to: –

b) The clarifying and interpretation of the constitution and the other effective laws of the country, when the essence of their purpose is understood.

Having convinced:

Per above provisions of the law, judicial review is when there is a dispute about the understanding of the provisions of the Constitution and effective laws of the country and becomes important to define them. However, the request submitted by the Somaliland National Electoral Commission as to the order of conducting upcoming elections does constitute judicial review

Having realized:

That the determination of the time for the elections to be held is the authority of the Somaliland National Electoral Commission according to Article 16 of the Somaliland Electoral Laws, Law No. 91/2020, Clause 1 that reads as follows:

Article 16 Powers of the Commission

The Commission has the power:

1. To specify the time of the elections and then present it to the president for publicizing it via presidential decree. Therefore, determining the timing of elections is not one of the powers of Somaliland.

DECISION OF THE COURT

Having seen:

All the relevant provisions mentioned above, the court issued this resolution:

The Constitutional Court of the Republic of Somaliland:

1. Rejected the request for legal interpretation that the National Electorate Commission sent to the Somaliland Supreme Court, the country’s Constitutional Court, on July 4, 2023.

2. The Somaliland National Electorate Commission is instructed to determine the time of the elections as it is their authority according to Article 16 of the Somaliland Electoral Laws, Law No. 91/2020, Clause 1

3. This resolution came out on July 10, 2023.