The Decision To Extend The Guurti Term Has No Constitutional Validity

Somaliland Forum

1. We, the Somaliland Forum, have been discussing the forthcoming end of the term of the House of Elders (Guurti) in October 2006 and the Guurti Indirect Elections Bill, which is currently being considered by the House of Representatives.  We were therefore extremely surprised to learn that on Sunday 6th May 2006, the Guurti considered a presidential decree  extending their term of office  for another 4 years up to October 2010 and promptly voted to endorse it. This is the third such extension of the Guurti’s original six year term of office which expired in 2003, and will, if unchallenged, mean that  Guurti members will serve well over two full terms before they face any direct or indirect elections.

2. It appears that neither the President nor the Guurti has consulted either the main the main legislative chamber, the House of Representatives which is currently considering a Guurti Indirect Elections Bill, or the political parties or the civil society.   Also the President’s decree had attached to it an advisory opinion from the Supreme Court (sitting as the constitutional Court), which the President apparently sought secretly on 22 April 2006, and was given by the Court, in the same fashion, on 24 April 2006.  Next, the Guurti, at its meeting on Sunday 6th May 2006, considered and rejected overwhelmingly a motion that the Presidential decree be forwarded also to the House of Representatives and endorsed the extension of their own term of office exclusively by a vote 66 members for and 3 against, with the Chairman abstaining – a high attendance of 70 out of the maximum 82 members.
We believe that:
 

a) The decision to extend the Guurti term has no constitutional validity and that that the President and the Guurti have no powers to extend the term of office of the Guurti as there is no provision in the Constitution which allows them to do so.
 

b) This legal position was known before and the previous extension of the term of office of the Guurti in 2003 was undertaken through a one clause  law passed by the House of Representatives and the Guurti and a law that linked the term of office of the Guurti to the previous House of Representatives so that the Guurti can benefit indirectly from any extension of the term of the Representatives under Article 42(3)  of the Constitution[1] which allows extension of the Representatives’ term of office in situations when “dire circumstances” make the election impossible to hold.

c) It is clear from the reading of the plain words of Article 42(3) that it applies ONLY to the House of Representatives, and it can, by no stretch of imagination, be extended to cover the House of Elders.  We therefore believe that the Supreme Court advisory opinion to the effect that Article 42(3) allows the Guurti itself to extend its own term is incorrect and perverse.  The Court appears to have completely overlooked the 2003 Clause 19 Resolution of both Houses (see below) which legitimised the earlier Guurti term of office extensions.
 

d) We do not understand the Court’s assertion that Article 38(1) of the Constitution [2] which simply says that the legislative powers in the state of Somaliland shall be vested in the two Houses somehow makes them “equal” and therefore allows Article 42(3) which applies exclusively to the Representatives to be applied to the Guurti.  Does that mean therefore that all the different articles which apply only to one or the other should be interchangeable?

e) In our view, as  the Guurti can not rely on Article 43(2), their current resolution cannot become law without it being endorsed by the House of Representatives and signed into law by the President (see Article 77 and 78 of the Constitution). In any case, the Guurti specialises in initiating legislation relating to the traditions, religion and security (see Article 61(1) of the Constitution).

f) We believe that the Supreme Court has no power under the Somaliland Constitution or under the Organisation of the Judiciary Bill passed by the House of Representatives (but not yet passed into law) to give “advisory opinions”– some constitutions in countries with parliamentary or mixed parliamentary/presidential systems of government allow for such power in limited circumstances but it is rarely used and it has often been criticised as politicising their supreme courts.

g) Somaliland has opted for a US style presidential system of government with a high degree of separation of powers and the Somaliland Organisation of the Judiciary Bill follows the US[3] example and confines the Constitutional Court’s jurisdiction to “controversies” and matters in dispute[4].

h) Article 98(1) of the Constitution[5] which the Supreme Court relied on as giving it “exclusive power to give opinions” is a general power to all the courts of the land  that they can interpret, in accordance with the Constitution, the laws of the land in any matter that comes before them, and this does not give the Supreme Court or the Constitutional Court an additional power to give exclusive and secret advisory opinion to the President.  If this Article gave the Court such an “exclusive power” as claimed by the Court, why has the Court not responded to the various petitions from the oppositions parties to make its opinion known on issues, such as the notorious unconstitutional government security committees  which sentence citizens to prison terms without any judicial involvement?
 

i) The Somaliland Supreme Court has damaged its own standing further by not asking for submissions from interested groups and, in particular, the House of Representatives when it knew of the highly controversial nature of the request for advisory opinion as is done by supreme courts which give advisory opinions.

j) In line with the law and practice of supreme courts that give advisory opinions as set out in their constitutions[6], any advisory opinion given is NOT binding, because it is not a judgment and so. in our view, even if it can be said that the Somaliland Supreme Court has such a power, the advice given is not binding and can be challenged and have to be heard, unfortunately, by the same court.

k) Finally, even if the term extension can be effected under Article 42(3), we do not accept the arbitrary period of 4 years chosen as the period during which the “dire circumstances” preventing an election can come to an end.  We note that the previous extensions of the House of Representatives (and hence the Guurti) were one year initially, and then 2 years.  The recommendation of a 4 year extension appears to have come from the President.