Term Paper: The Federal Republic of

Somalia

Submitted To:

<Teachers name and Designation>

Submitted by:

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National Anthem of Somalia

Soomaaliyeey toosoo

Toosoo isku tiirsada ee

Hadba kiina taagdaranee

Taageera waligiinee

Idinkaysu tookhaayoo

Idinkaysu taamaayee

Aadamuhu tacliin barayoo

Waddankiisa taamyeeloo

Sharcigaa isku kiin tolayoo

Luuqadaa tuwaaxid ahoo

Arligiina taaka ahoo

Kuma kala tegeysaan oo

Tiro ari ah oo dhaxalaa

Sideed laydin soo tubayoo

Ninba toban la meel marayoo

Cadowgiin idiin talin oo

Tuldo geel ah oo dhacan baad

Toogasho u badheedhanee

Ma dhulkaas dhanee tegeybaan

Ninna dhagax u tuurayn

Qaran aan hubkuu tumayo

Tooreyda dhaafayn

Oo aan taar samayn karin

Uur kutaallo weynaa

Hadba waxaan la taahaayoo

Togagga uga qaylshaa

Nin dalkiisii cadow taaboo

U tol waayey baan ahayee

Official Map of Somalia

1. Form of Somalia as a State

Somalia in Somali: Soomaaliya; Arabic: الصومال‎ ), officially the Federal Republic of

Somalia in Somali: Jamhuuriyadda Federaalka Soomaaliya, Arabic: لاروصل ةيروهم

Jumhūrīyat aṣ ةلاو ةلل -Ṣ ūmāl al-Fidirālīyah), is a country located in the Horn of

Africa. It is bordered by Ethiopia to the west, Djibouti to the northwest, the Gulf of

Aden to the north, the Indian Ocean to the east, and Kenya to the southwest.

Somalia has the longest coastline on the continent's mainland, and its terrain

consists mainly of plateaus, plains and highlands. Climatically, hot conditions

prevail year-round, with periodic monsoon winds and irregular rainfall.

Somalia has a population of around 10 million. Around 85% of its residents are

ethnic Somalis, who have historically inhabited the northern part of the country.

Ethnic minorities are largely concentrated in the southern regions. The official

languages of Somalia are Somali and Arabic, both of which belong to the Afro-

Asiatic family. Most people in the country are Muslim, with the majority being

Sunni1.

1 <http://www.bbc.co.uk/news/world-africa-14094503> accessed on 25

th March 2015

In antiquity, Somalia was an important commercial centre. It is among the most

probable locations of the fabled ancient Land of Punt. During the Middle Ages,

several powerful Somali empires dominated the regional trade, including the

Ajuran Empire, the Adal Sultanate, the Warsangali Sultanate, and the Geledi

Sultanate. In the late 19th century, through a succession of treaties with these

kingdoms, the British and Italians gained control of parts of the coast and

established the colonies of British Somaliland and Italian Somaliland. In the

interior, Muhammad Abdullah Hassan's Dervish State successfully repelled the

British Empire four times and forced it to retreat to the coastal region. The

Dervishes were finally defeated in 1920 by British airpower. Italy acquired full

control of the north eastern and southern parts of the area after successfully waging

the so-called Campaign of the Sultanates against the ruling Majeerteen Sultanate

and Sultanate of Hobyo. Italian occupation lasted until 1941, yielding to British

military administration. Northern Somalia would remain a protectorate, while

southern Somalia became a United Nations Trusteeship in 1949. In 1960, the two

regions united to form the independent Somali Republic under a civilian

government. Mohamed Siad Barre seized power in 1969 and established the

Somali Democratic Republic. In 1991, Barre's government collapsed as the Somali

Civil War broke out.

2. Type of Constitution in Somalia

The Provisional Constitution of the Federal Republic of Somalia (Somali:

Dastuurka Jamhuuriyadda Federaalka Soomaaliya, Arabic: ةيووهمج ووتسد

لاو م يروهم ة is the supreme law of Somalia. It provides the legal foundation ( صل ة

for the existence of the Federal Republic and source of legal authority. It sets out

the rights and duties of its citizens, and defines the structure of government. The

Provisional Constitution was adopted on August 1, 2012 by a National

Constitutional Assembly in Mogadishu, Banaadir.

Somalia's provisional Constitution provides for a parliamentarian system of

government, with the President of Somalia as head of state and a selected Prime

Minister as head of government. The country has a bicameral legislature, which

consists of the Senate (upper house) and the National Assembly of Somalia (lower

house). Together, they make up the Federal Parliament of Somalia.

It is divided into XV Chapters, subdivided into 143 articles and 4 Schedules as

follows: Declaration of the Federal Republic of Somalia (Chap. I); Fundamental

Rights and the Duties of the Citizen (Chap. II); Land, Property and Environment

(Chap. III); Representation of the People (Chap. IV); Devolution of the Powers of

State in the Federal Republic of Somalia (Chap. V); The Federal Parliament (Chap.

VI); The President of the Federal Republic (Chap. VII); The Executive Branch

(Chap. VIII); The Judicial Authority (Chap. IX); The Independent Commissions

(Chap. X); Civil Service (Chap. XI); Federal Member States (Chap. XII); Public

Finance (Chap. XIII); Peace and Security (Chap. XIV); Final and Transitional

Provisions (Chap. XV). After the Shari’ah, the Constitution of the Federal

Republic of Somalia is the supreme law of the country. It binds the government

and guides policy initiatives and decisions in all sections of government2.

3. Supremacy of the Constitution in Somalia

2

<http://faolex.fao.org/cgibin/faolex.exe?rec_id=127387&database=faolex&search_type=link&table=result&lang=en

g&format_name=@ERALL> accessed on 20th March 2015

According to the provisions3 of the Constitution of Somalia, Supremacy of the

Constitution

(1) After the Shari’ah, the Constitution of the Federal Republic of Somalia is the

supreme law of the country. It binds the government and guides policy initiatives

and decisions in all departments of government.

(2) Any law, or administrative action that is contrary to the Constitution may be

invalidated by the Constitutional Court, which has the authority to do so in

accordance with this Constitution.

4. Forms of the Government in Somalia

The Federal Republic of Somalia is a federal, sovereign, and democratic republic

founded on inclusive representation of the people, a multiparty system and social

justice on the following founding principles: The Constitution of Somalia is based

on the foundations of the Holy Quran and the Sunna (PBUH) and protects the

higher objectives of Shari’ah and social justice. Somalia is a Muslim country and

member of the African and Arab Nations; is founded upon the fundamental

principles of power sharing in a federal system.

3 Article 4 of the Constitution of Republic of Somalia

The Constitution promotes human rights, the rule of law, general standards of

international law, justice, participatory consultative and inclusive government, and

the separation of powers between the legislature, executive and an independent

judiciary, in order to ensure accountability, efficiency and responsiveness to the

interests of the people. Women must be included, in an effective way, in all

national institutions, in particular all elected and appointed positions across the

three branches of government and in national independent commissions. The state

religion is Islam, but all other religions can be practised in peace and harmony.

Impeachment procedure of President

Under provisions4 of the Constitution of Somalia, impeachment of the Somali

president specifies the following:

4 Article 92 of the Republic of Somalia

1. The house of the people of the federal parliament can propose the dismissal of

the president of the federal republic of Somalia if he is accused of treason, or gross

violation of the constitution or the laws of the federal republic of Somalia.

2. The motion for dismissing the president of the federal republic of Somalia may

be introduced by no less than one-third (1/3) of the total membership of the house

of the federal parliament and may be presented to the constitutional court, which

shall preside over the case to see whether it has legal grounds.

3. If the constitutional court determines that the case has legal grounds, the

president of the federal republic of Somalia may be dismissed by a two-thirds (2/3)

majority vote of the total members of the two houses of the federal parliament

4. If the president of the federal republic of Somalia is dismissed in accordance

with clauses 1-3 of this article the speaker of the house of the people of the federal

parliament shall assume the duties of the president of the federal republic of

Somalia.

Before drafting the impeachment motion, the federal parliament approved two

important parliamentary rules. First, Members of Parliament were denied the

possibility of withdrawing from sponsored motion after submission. This

restriction improves the integrity of the federal parliament and forces each member

to not sign on any motion for political bargain. Second, the voting procedure for

approving or rejecting political leaders and government officials will be secret.

These two amendments were ground work for the impeachment.

5. Fundamental Rights Enforcement in Somalia

Chapter 2 of the constitution is dedicated to the fundamental human rights and

duties of the citizens. The Chapter 2 recognizes, guarantees and protects the human

dignity, equality, right to life, personal liberty and security, freedom of association,

freedom of religion, opinion and expression, freedom of assembly and freedom of

movement , inviolability of home. Chapter 2 further recognizes and protects

several other economic, social and political rights.

Environmental rights and duties

Article 25 regarding the environmental rights sets forth that every person has the

right to an environment that is not harmful to their health and well-being, and to be

protected from pollution and harmful materials. Every person has the right to have

a share of the natural resources of the country, whilst being protected from

excessive and damaging exploitation of these natural resources.

Property rights

Article 26 regarding the right to property states that every person has the right to

own, use, enjoy, sell, and transfer property. The state may compulsorily acquire

property only if doing so is in the public interest. Any person whose property has

been acquired in the name of the public interest has the right to just compensation

from the State as agreed by the parties or decided by a court.

Right to food

No provisions regarding the right to food or food security.

Right to water

The Constitution of Somalia explicitly recognises the right to water. Article 27 sets

forth that every person has the right to clean potable water.

Non discrimination and gender equality

Article 11 of the Constitution regarding non discrimination and equality sets forth

that ‘ All citizens, regardless of sex, religion, social or economic status, political

opinion, clan, disability, occupation, birth or dialect shall have equal rights and

duties before the law. Discrimination is deemed to occur if the effect of an action

impairs or restricts a person’s rights, even if the actor did not intend this effect. The

State must not discriminate against any person on the basis of age, race, colour,

tribe, ethnicity, culture, dialect, gender, birth, disability, religion, political opinion,

occupation, or wealth. All State programs, such as laws, or political and

administrative actions that are designed to achieve full equality for individualsor

groups who are disadvantaged, or who have suffered from discrimination in the

past, shall be deemed to be not discriminatory’(Art. 11). It is also stated in Article

27 regarding economic and social rights that ‘it shall be ensured that women, the

aged, the disabled and minorities who have long suffered discrimination get the

necessary support to realize their socio-economic rights’.

Indigenous rights

No provisions regarding indigenous rights.

The departure of the last troops of the United Nations' Somalia operation in March

1995 marks a critical juncture for Somalia, and for international peacekeeping. In

researching this report, Human Rights Watch set out to discover what would be left

behind when the U.N. withdrew, what the prospects would be for the future, and

what recommendations should be made to Somalis and the international

community based on what we learned. The resulting recommendations are directed

at Somali leaders at all levels of society (including those in the Somali diaspora), at

various governments in the region, and at the wider international community, in

particular the major European powers and the U.S. They concern the protection

and promotion of human rights in Somalia, but also larger issues of international

peacekeeping, peace enforcement and humanitarian intervention.

In this report, Human Rights Watch calls upon Somalia's de facto authorities to

take responsibility for the armed groups acting on their authority, to impose

discipline on these forces and hold them accountable for their actions, and to bring

human rights considerations into their discussions with other authorities, not least

the elimination of practices that discriminate by reason of clan affiliations. Within

this broad framework, Human Rights Watch is also calling for an end to the

indiscriminate use of force by parties to ongoing conflict in Somalia, to

extrajudicial or judicial executions, and to amputations, hostage-taking and forced

displacement. Human Rights Watch recommends to the United Nations the

incorporation of a human rights component into all peacekeeping operations, while

calling upon the international community to make the long-in-force, but never

enforced, arms embargo on Somalia a reality until representative government has

been re-established there.

This report5 considers some of the lessons learned-and those wrongly drawn-from

the U.N. operation in Somalia that has now come to an end. First authorized by the

Security Council in April 1992, UNOSOM (the United Nations Operation in

Somalia) had taken assertive action to support aid deliveries only in December

1992, when backed by 24,000 U.S. troops and 13,000 others under U.S. command

in the United Nations International Task Force (UNITAF). In May 1993

UNOSOM and UNITAF were replaced with a program with a broader mandate

called UNOSOM II, although those U.S. forces that remained continued to

function under a separate U.S. command.

Today the international community risks misreading the Somalia experience as a

blunt warning against all engagement in the crises that generate complex

emergencies, from war-driven famine to genocide. That the intervention was costly

in peacekeepers' lives and produced only limited results is often cited as an

argument against engagement. At the same time, many observers fail to note the

importance of the U.N.'s overwhelming emphasis on brokering deals between

powerful military leaders, to the detriment of those in Somali society seeking

reconstruction and reconciliation (and the U.N.'s own programs to this end)6.

Indeed some critics of the operation have argued that it was because the U.N.

sought to go beyond simple wooing of the warleaders that clashes with the U.N.

took place and the peacekeeping force fell short of its objectives to leave Somalia

with some kind of government in place. These critiques should not go

unchallenged. (Although these leaders are commonly termed "warlords," this

report uses the neutral term "warleader," as their function within each subclan's

collective leadership is to lead it in war.)

5 <http://www.hrw.org/reports/1995/somalia/> accessed on 25th March 2015

6 ibid

6. Parliament of Somalia

The Federal Parliament of Somalia (Somali: Golaha Shacabka Soomaaliya; often

Baarlamaanka Federaalka Soomaaliya; Arabic: ةموةله يدهدي ا ةيروهم ) is the

national parliament of Somalia. Formed in August 2012, it is based in the capital

Mogadishu and is bicameral, consisting of an Upper House and a Lower House

(House of the People)7.

The Transitional Federal Institutions (TFIs) were the key foundations of the

national government of Somalia. Created in 2004, they included the Transitional

Federal Charter (TFC), the Transitional Federal Government (TFG) and the

Transitional Federal Parliament (TFP).

The TFP is the parliament of Somalia. It constituted the legislative branch of

government, with the Transitional Federal Government representing the executive

division. 7 <https://en.wikipedia.org/wiki/Federal_Parliament_of_Somalia> accessed on 25

th 2015

The Transitional Federal Parliament elected the President and Prime Minister, and

had the authority to propose and pass laws. It was also in charge of governance and

administration of Mogadishu, which was then the seat of the TFG. Members of

Parliament (MP) were selected through traditional clan leaders or shura councils.

The Federal Parliament of Somalia was established on August 20, 2012, following

the end of the Transitional Federal Government's mandate.

7. Composition of Judiciary in Somalia

The judiciary of Somalia is defined by the Provisional Constitution of the Federal

Republic of Somalia. It stipulates that the national court structure is to be

organized into three tiers: the Constitutional Court, Federal Government level

courts, and Federal Member State level courts. A future nine-member Judicial

Service Commission is empowered to appoint any federal tier member of the

judiciary. It also selects and presents potential Constitutional Court judges to the

House of the People of the Federal Parliament for approval. If endorsed, the

President then appoints the candidate as a judge of the Constitutional Court. The

five-member Constitutional Court is likewise empowered to adjudicate issues

pertaining to the constitution, in addition to various federal and sub-national

matters8.

As of 2014, pending the adoption of new legislation, the pre-civil war judicial

structure, courts and laws are in the process of being reformed to be applicable in

Somalia's new federal system. In May 2014, the Council of Ministers approved a

new Constitutional Review and Implementation Commission. Additionally, the

Somali Bar Association has recommended that several federal and regional courts

should be established to handle cases on a provincial basis. In this capacity, new

8 <https://en.wikipedia.org/wiki/Judiciary_of_Somalia> accessed on 25th March 2015

local courts have been set up in areas that have been re-captured by the central

government.

In June 2014, the Minister of Justice and Constitutional Affairs Farah Sheikh

Abdulkadir also announced that the Federal Parliament had approved a new law

establishing the Judicial Service Commission. As part of a broader effort at

reforming the judiciary, the office of the Attorney General also hired six additional

women lawyers in April 2015. They are among 17 new attorneys attached to the

office within the Ministry of Justice.

8. Separation of Power in Somalia

The separation of powers, often imprecisely used interchangeably with the trias

politica principle, is a model for the governance of a state (or who controls the

state). Under this model, the state of Somalia is divided into branches, each with

separate and independent powers and areas of responsibility so that the powers of

one branch are not in conflict with the powers associated with the other branches.

The typical division of branches is into a legislature, an executive, and a judiciary.

It can be contrasted with the fusion of powers in a parliamentary system where the

executive and legislature (and sometimes parts of the judiciary) are unified.

Executive: the President, Chief of State, is elected by popular vote for a 7-year

term and is eligible for a second term. He appoints the Prime Minister, Head of

Government. The Council of Ministers is appointed by the Prime Minister in

consultation with the President.

Legislative: the unicameral Parliament is called National Assembly. It consists of

150 deputies: 90 are elected by direct popular vote and 60 are elected by

proportional representation from party lists to serve 5-year terms.

Judicial: the Highest Appeals Court and the Constitutional Council are the highest

courts. The Highest Appeals Court consists of 13 Judges including the Court

President. The Constitutional Council consists of 5 members including the court

president, vice-president and 3 judges. The Constitutional Council members are

appointed by the President of the Republic to serve 6-year terms with renewal of 3

members every 2 years. The Regional and First Instance Courts are subordinate

courts. Thus there exists separation of power in Senegal.

9. Judicial Review in Somalia

Judicial review is the doctrine under which legislative and executive actions are

subject to review by the judiciary. A court with judicial review power may

invalidate laws and decisions that are incompatible with a higher authority, such as

the terms of a written constitution. Judicial review is one of the checks and

balances in the separation of powers: the power of the judiciary to supervise the

legislative and executive branches. The doctrine varies between jurisdictions, so

the procedure and scope of judicial review may differ between and within

countries.

In Somalia, Judicial review can be understood in the context of two distinct—but

parallel—legal systems, civil law and common law, and also by two distinct

theories of democracy regarding the manner in which government should be

organized with respect to the principles and doctrines of legislative supremacy and

the separation of powers9.

First, two distinct legal systems, civil law and common law, have different views

about judicial review. Common-law judges are seen as sources of law, capable of

creating new legal principles, and also capable of rejecting legal principles that are

no longer valid. In the civil-law tradition, judges are seen as those who apply the

law, with no power to create (or destroy) legal principles.

10. Amendment Procedure of Constitution in Somalia

Amendments or additions to the provisions of the Constitution shall be decided by

the National Assembly on the proposal of at least one fifth of its members, or of

the Government, or of 10,000 voters, by two successive ballots held at an interval

of not less than three months, approval thereof requiring an absolute majority of

the deputies on the first ballot and a two third majority on the second ballot10

.

Limits on Amendments to the Constitution

The Constitution shall not be amended under the terms of the preceding article for

the purpose of modifying the republican and democratic form of government or for

9 <http://en.m.wikipedia.org/wiki/Judicial_review> accessed on 24 May 2015

10 Article 104 of the Constitution of the Republic of Somalia

restricting the fundamental rights and freedoms 0f the citizen and of man

guaranteed by the Constitution11

.

11

Article 105 of the Constitution of the Republic of Somalia