By Dahir Mohamed Mahmoud
The Somali legislature’s history goes back to the colonial and post-independence parliaments which were unicameral based on a multiparty system. Then a military coup suspended the only ratified constitution 1961, to establish a socialist one-party system that led to civil rebellion. After decades of civil war, the Somali provisional constitution was adopted by the National Constitutional Assembly on August 1st, 2012 which introduced a bicameral system (The House of People and the Upper House). Both houses carry out legislative duties and other duties separately or jointly. The number of members of the two houses is enshrined in the provisional constitution. The House of People (HoP) members should be two hundred and seventy-five (275) MPs distributed through 4.5 power-sharing system based on clan majority where the Upper House (UH) members were restricted to fifty-four (54) senators allocated on base 18 of regions before 1991(each region secures three senators including Mogadishu).
After the ratification of the provisional constitution in 2012 and the end of the 8th parliament, formation of the house of people (9th parliament) was agreed by the Somali politicians and elders where the Upper House formation failed due to dispute over seat distribution. An agreement over the dispute was reached on 14 September 2016 in which admitted allocating seats on the basis of federal member states equal seats rather than regional representation seats in the provisional constitution. In this arrangement, Mogadishu (Banadir) did not receive a seat but lost its three seats conferred by the provisional constitution. At the beginning of the 10th parliament term, a campaign for Mogadishu (Banadir) representation in the Upper House was started by Banadir regional administration (BRA) and members of both houses.
The campaign got federal government support when the president incorporated his speech at the opening of the 7th session of parliament- request to uphold Banadir representation in the Upper House. It was an unpredictable request because the president fired the previous Mogadishu mayor for campaigning on the same issue. President’s encouragement of an unconstitutional parliament constitutes a violation of the constitution as he disregarded constitutional rights of opposition parties leaders ( freedom of expression and opinion; and freedom of movement and residence) and intervening process of elections at federal member states.
The house of people approved by simple majority a resolution on Mogadishu representation in the UH that grants thirteen (13) senators. This resolution debate was attended by 146 MPs. The resolution raises many interrelated questions on its constitutionality, a quorum of sitting and passage, type of resolution and impact of resolution implementation. The speaker’s duty was to verify the quorum at the beginning of the sitting. If the passage of a motion requires a two-thirds majority vote, at least two-thirds of the members must be present at the beginning of sitting and voting. It is clear that the speaker did not follow the rules of the parliament to conduct parliament daily activities. This constitutes one of the reasons that trigger loss of the office by the speaker (breach of the constitution, the laws of the country, or the rules of procedure of HoP ).
The intention of the parliament committee proposed motion on Mogadishu representation was to create a bill but the long procedure of the bill and current conflict between the president and Upper House forced to abandon it. Thus the speaker of the HoP issued a resolution. Houses of the legislature may adopt binding or non-binding resolutions. For example, the US Congress declares war or process constitutional amendments by adopting a joint resolution which is a legislative instrument that requires passage by two houses and is presented to the president for approval or disapproval. Thus, a joint resolution has a legal power similar to a bill.
During the 9th parliament term, three constitutional provisions (Art: 67,135 and 138) were amended under the constitutional framework, attended specified quorum of two-thirds (2/3) of the house members and approved. For instance, the house of people adopted a resolution on suspension/amendment of provision 67 and 135 with the majority of 204 MPs that represents more than two-thirds of the house of people.
In contrast, resolution of Banadir region(Mogadishu) representation in the Upper House did not meet specified quorum for sitting and passage of a resolution, two-third of the HoP. The motion was aimed to amend provision 72 of the provisional constitution that defines the number of UH to 54 senators. So increasing the number to 67 requires a specified quorum of two-thirds of the house of people (184) or 219 in case of a joint resolution.
Incumbent president’s support to Mogadishu representation in the UH, it seems a purely political agenda for 2021 elections, in order to create conflict or divisions among opposition parties, federal member states and Mogadishu residents. On the legal aspect, the resolution could trigger a constitutional crisis that may endanger the process of state-building and the fragile democracy of Somalia. Protecting the constitution and laws of the country (Somalia) will strengthen law and order, good governance and federal government institutions, which will facilitate transparent and fair elections in 2012
Dahir Mohamed Mahmoud ( Dawilow ) is a Senior Legal advisor and former UNDP legal specialist for Somalia.