Analysis
By East Africa Policy Institute
There is a vigorous argument taking place in Hargeisa about the announcement of a new political association (QARAN) headed by veteran Somaliland politicians like Dr. Mohamed Abdi Gabose (former Interior Minister) and Mohamed Hashi Elmi (former Minister of Industry and Commerce). The big question mark is centered on the legality of establishing any new political association intending to become a political party when the Somaliland constitution allows the existence of only three national parties.
The government is vehemently opposed to this new development and points out to an article in the Somaliland constitution as supportive evidence for its argument. To be specific article 9.
Article 9: (Political System) clearly states that:
“The number of political parties in the Republic of Somaliland shall not exceed three”.
The artificial limit on the number of political parties have been chosen to avoid the experience of the early 1960s Somali Republic when a considerable number of political parties based on clan affiliations contested elections and created chaos, specially during and after the 1969 general elections.
Those who oppose the formation of this new political association point to this article to bolster their argument and assert their conviction that the matter is clearly decided since the number of allowed parties has been enshrined in the constitution, and the country has already chosen said parties.
Proponents and supporters of Qaran on the other hand insist that the constitution is on their side and point out that Articles 22 and 23/3:
1) “Every citizen shall have the right to participate in the political, economic, social and cultural affairs in accordance with the laws and the Constitution”.
2)”Every citizen who fulfils the requirements of the law shall have the right to be elected and to vote”.
Article 23/3 states “ Every citizen shall have the right, in accordance with the law, to form political, educational, cultural, social and professional associations”.
Articles 22 and 23 of part three in chapter one of the Constitution entitled: “The rights of the individual, fundamental freedoms and the duties of the citizen”.
This is important because along with democracy and the establishment of multiparty system in the country (article 9/1), the fundamental rights and personal freedom of the individual are the only articles in the constitution that cannot be amended by any branch of the government. This is noted on article 127 of the Constitution (the limits of amendments or corrections of the Constitution) which clearly states:
“No proposal to amend or correct the constitution shall be made if it includes a provision which is in conflict with:-
(c) Democracy and plurality of political parties.
(d) The fundamental rights and personal freedom of a citizen“.
Furthermore, article 21 emphasizes the implementation of the provisions present in all the fundamental rights granted to citizens such as the ones in article 22 and 23. It should also be interpreted in accordance to the international conventions which relates to such rights, and international covenant on civil and political rights.
Qaran is in agreement with the number of political parties allowed (3), but it is the permanency of the current one’s (UDUB,KULMIYE,UCID) that it finds as a restriction of the right of association enshrined as a fundamental right under Article 23(3) of the Constitution, as well as the international conventions which relate to such a right, such as Article 22 of the International Covenant on Civil and Political Rights (ICPCR) and article 10(1) of the African Charter on Human and People’s Rights.
So, how does one reconcile the appearance of conflict between article 9 in the constitution which permits the existence of only three national parties and the fundamental rights guaranteed for the individual in article 22 and 23?
This is where law No.14/2000 (the law of regulations of politicalparties) comes into play. This is not a new law, it is the same law used to conduct the last local election, and it is the same law which will govern the conduct of the next election, incidentally it also happens to be the only law protecting the rights of current political parties from the strong hand of the government. It clearly lays out the necessary steps needed that will allow qualified citizens to participate in the process which ultimately culminates in producing the final three political parties that will be eligible to run for the presidential elections. It should be noted that the presidential election cannot be held ahead or concurrently with the local (municipal) election, because, it is the local elections that produce the final three parties eligible to run for the presidential election in accordance to existing law.
Article 4 in law n. 14/2000 allows existing “parties” and newly formed politicalassociations to have an equal opportunity to contest in every local (municipal) election. This law was written before we even had existing parties and it is a clear indication that once formed they (the parties) had to compete with each other as well as newly formed political entities vying to displace them in local elections.
In other words, the vetting process that produces the ultimate magical number (3) is the local electoral process, and here every citizen that fulfills the requirements established by the registering committee has an absolute right to run for office. Furthermore article 2 of law 14/2000 states that the S/Land government should always have a committee responsible for the registration of political associations and ratification of national political parties. It is the president’s responsibility to nominate such committee.
The previous committee was disbanded 6 months after the last election for budgetary reasons (it did not make sense to have someone on the payroll for five years and not have any duties to perform), but now that it is election time once again, nothing stops the president to perform his duty and nominate the next registering committee.
There are those that argue that law no. 14 was specifically designed for the first election and it is no longer valid. The trouble with that argument is that there is no evidence legal or otherwise to support it.
Three things must happen to make a law null and void:
- A new law which negates the existing one.
- A Supreme Court decision finding the existing law to be unconstitutional.
- A sunset provision within the original language clearly indicating that at a given time this law shall expire.
None of those conditions exist today, and what makes matters even more problematic for the government is that they (the government) used this very law no.14/2000 to deny the candidacy of an aspiring independent candidate (Mrs. Fawzia H.Aden) to run for president, because law no. 14 does not allow the election of an independent candidate. To use a law when it suits one’s goal and to negate that very law when it is no longer convenient makes one’s position less credible than it would be otherwise.
Those who believe that the introduction of new players in the political arena will be detrimental to their chances of being re-elected or might actually bring about the possibility of their parties loosing their coveted place among the chosen few will resist the interpretation brought forward by Qaran and its supporters. Those who believe otherwise will welcome this development.
The question the rest of us need to answer is whether the country is better off with three permanent parties, or whether our democracy is better served when the competition for office is wide open to all who qualify, and regular elections where no seat or party is safe from the will of the people is a reality and not just a dream in Somaliland.
East Africa Policy Institute
http://eastafricapi.com/index.php?option=com_content&task=view&id=18&Itemid=1
