By: Mahmoud Adam Jama “Galaal”

Just under one year prior to presidential elections and in the wake of growing public discontent and a huge slump in popularity, president Muse Bihi orchestrated a cunning and yet highly dangerous maneuver that put Somaliland on a costly path to a constitutional crisis.  The mood in the country and the dwindling prospect of being re-elected appear to be the primary motivation for taking such a drastic and risky strategy clearly formulated to keep him in office beyond his five-year fixed term. 

The two opposition political parties in Somaliland Waddani and UCID vociferously claim the president engineered the scheme in a bid to avoid contesting the presidential election scheduled for 13 November 2022 against the two current presidential candidates in order to remain in office. The move could potentially put the Republic of Somaliland on a perilous path to a constitutional crisis and civil unrest. 

Background 

The Somaliland constitution allows three national political parties which are currently licenced for a period of 10 years. There are two notable statutes that govern the elections as well as the process of competing for political party licences.  These are Laws 91 and 14 respectively. Six months prior to the end of the ten-year political party license term, registrations for applications for political parties are opened.  It’s an open field at this point as applications are being accepted from any new applicant organisation that fulfills the basic criteria and pays a $34,000.00 registration fee. It’s important to note the law waives the registration fee for the existing three political parties. Prior to now, organisations wanting to become political parties competed for their licenses through nationwide local municipal elections.  The three organisations with the highest regional votes in the local election then became the officially recognised and duly licensed national political parties. 

Recent developments and the current situation 

Toward the end of the last parliament, the governing Kulmiye party introduced amendments to Law No 14. The house of elders “Guurti” ratified the amendments and sent the bill to the president to be signed into law.  The president refused to sign the bill and returned it to parliament citing a number of legal flaws and insisting on further amendments. In his covering letter to parliament, the president asserted the bill was incompatible with constitutionally binding Presidential and Guurti elections as well as the provisions of Law No. 91. He instructed parliament, using his constitutional presidential prerogative, to make further amendments to make Law No. 14 compatible with constitutionally obligatory presidential elections and the terms of Law No. 91. 

Before parliament could consider the president’s suggested amendments several significant political events occurred. First, a number of notable Kulmiye party politicians, including the author of this article, defected to the main opposition party Waddani.  

Shortly after, on 16 November 2021 Waddani elected Hersi Ali Haji Hassan as its chairman at their 2^nd General Assembly. 

These two events caused major reverberations in the seat of government because it expanded the Waddani party’s appeal to a broader constituency particularly in the Eastern regions of the country.  In response to these developments, the Kulmiye party organised 28 members of parliament to table a motion declaring that Bill No. 14 had assented into law.  This was shortly followed by the Somaliland Minister of Information’s impromptu press conference on 12 December 2021 where he told the waiting media that he was speaking on behalf of the president and that Bill No. 14 had assented into law.  He asserted that new political parties were hence open for registration. 

Despite the fact that the current three political parties Waddani, Kulmiye, and UCID were licensed up until 26 December 2022 and were therefore entitled to contest the 13 November 2022 presidential elections, the government bombarded the media with the suggestion that the current three parties would not be allowed to contest those elections unless they qualified as one of three organisations gaining the top three positions in a direct political party ballot. 

The motion by the MP’s stalled in parliament as Kulmiye members and others supporting the government’s position failed to find the two-thirds majority required.  On 13 December a cynical strategy of refusing to enter the parliament chamber to prevent a quorum and hence a debate was employed by the government’s MPs and supporters.  As those MPs congregated outside parliament refusing to enter the building, the situation become heated and there were physical altercations and clashes between opposing MPs.  

Armed police entered the parliament compound and attempted to arrest an opposition MP.  The MPs resisted the arrest of their colleague and asserted the parliament immunity privilege as defined in the constitution. As MPs struggled to prevent the arrest, the situation quickly become volatile and highly dangerous culminating with police discharging live rounds.  As a consequence of the apparent boycott by MPs supporting the government, parliament remained without a quorum of members and was therefore closed for twelve days.   

On 21 December 2022 forty six parliamentarians supporting the government’s position lodged a petition with the Supreme Court requesting a legal opinion on the basis that the dispute over Bill No. 14 had caused an impasse. The opposition and legal experts contended that the Court’s legal opinion could not be sought as the bill had not been debated in parliament and there was no specific clause/s which the court was being asked to define or provide an opinion on. It was further argued that it was the parliament’s duty to decide on whether or not the bill had assented into law and not the courts.  

Obstructing the duties of parliament by preventing a quorum, is of course a questionable and an unparliamentary maneuver intended to prevent debate and a democratic vote in the house.  Deploying such tactics and then seeking a judicial remedy is a clear abuse of process and a breach of established general rules and principles.  The Court’s acceptance of the petition and failure to thus far reject it is therefore of serious concern and may create the perception that even the highest court in the land has an ad hoc attitude to the legal process.   

Despite the lack of grounds for a judicial remedy, the government and proponents of the petition display a remarkable degree of confidence in the outcome of the case.  Notwithstanding the legal and ethical duty not to prejudice ongoing proceedings, parliamentarians aligned with the Bihi administration and even the president himself continue to make public pronouncements on the outcome of the case. Such action not only undermines the public and international community’s confidence in the independence of the Supreme Court but also brings to question the separation of power issues between the three main organs of government, the executive, judiciary, and legislative. The fact the Chief Justice/Chairman of the Supreme Court is appointed and may be dismissed by the president does not help to quell this concern or indeed inspire confidence. 

The president’s scheme to avoid contesting the presidential election against the current political parties is illegal and potentially very damaging.  It is an obvious attempt to deprive legitimate opposition candidates of their inalienable rights.

The law prescribes the next presidential election to take place on 13 November 2022, six weeks prior to the license expiry of the current political parties. Contrary to the government’s narrative, even the amended and disputed version of Law No. 14 does not preclude the current opposition from contesting the 13 November 2022 presidential election – providing the election is held on time.  

The relevant provisions in the amended Bill are as follows;  

License Period of Political Parties

1. The validity of a national political party’s license shall be a period of ten (10) years, starting from the date the license is issued and cannot be extended. 

• A political party may obtain a license by participating in direct elections held for organisations and political parties and then becoming one of the three parties with the highest percentage of votes in the regions. 

• Political parties whose license period has ended will not be permitted to participate in presidential, parliamentary or local elections, and will remain temporary parties until direct election which yield national political parties are held. 

• Registration of organisations and parties which will participate in direct elections, will be take place six months prior to the end of the political parties’ license period. 

As is evident, the above clauses contain nothing which can legally prevent the opposition from participating in any election which takes place before 26 December 2022.  

It’s abundantly clear that President Bihi has lost the confidence to race for another term. It’s also obvious the creation of a false and misleading narrative with respect to the eligibility of the opposition right to contest the next election is essentially a crude attempt to create a constitutional crisis with a view to winning an extension to his term in office.  

The concern is that continued political meddling will undermine the credibility of the judiciary and cause disenfranchisement of a large number of citizens. Such action could have damaging medium and long-term consequences on community cohesion and everything that entails. It will also leave an ugly stain on president Bihi’s legacy. 

In spite of the political damage the government’s ill-advised scheme to muddy the waters may cause, it may still be unsuccessful in achieving its ultimate goal of illegally disqualifying the current opposition from presidential elections. 

Mahmoud Adam Jama “Galaal” served as the Republic of Somaliland Ambassador to Ethiopia. He also served as State Minister for National Planning and State Minister for Health. He is now a member of the opposition Waddani Party.