Suldan Mohamed
On the 9th of October, Villa Somalia released a statement in which it outlined a Presidential decree signed by President Hassan Sheikh Mahmoud effectively disbanding two critical independent institutions created by Parliament: The Independent Anti-Corruption Commission (IACC) and the Judicial Service Commission which were both vital for tackling corruption and developing an independent judicial system in a country that has been consistently ranked amongst the most corrupt governments in the world.
In the statement, the President highlighted the formation of these independent institutions did not follow the correct legal procedure stipulated by the Somali Provisional Constitution, referring to document XG/504/B-12/021 released by the Upper House of Somalia’s 10th Federal Parliament which elucidated that the creation of these independent bodies was not voted on by the Upper House of the Federal Parliament.
The President ended the statement by ordering his administration to form new independent commissions utilising articles 71, 109A and 112 of the Provisional Constitution & Article 7 of the law on establishing the independent Judicial Service Commission and the appointment of the Independent Anti-Corruption Commission.
Somalia is at a critical time in its financial and legal journey as it opens its doors to the globe after a 30-year absence. Is the decision to abruptly disband these independent institutions in the interest of Somalia at this current time?
Let’s take look at this issue from multiple lenses.
Can independent commissions actually be disbanded by a Presidential decree?
To assess the legality of the decisions and the scope of the Anti-Corruption Commission, we must refer to Somalia’s Provisional Constitution, more specifically Article 111.
Article 111 stipulates that:
- “The country shall have Independent Commissions both at the Federal Government level as well as at the level of the Federal Member States, and their obligations, duties and numbers shall be defined in a law passed by both Houses of the Federal Parliament.“
The subsection that specifically deals with the IACC is Article 111C which outlines the mandate, power and scope of the commission.
Critically, under Article 111C6, the constitution reads as follows:
- “The Anti-Corruption Commission shall be independent, impartial, representative and inclusive and shall have not more than nine members.“
Now, if we refer to Article 110 of the Somali constitution, a vital piece of law that could question the legal justification of Villa Somalia’s decision is outlined:
Articles 110, sub-section 3 states:
- “An Independent Commission must not be subject to the direction or control of any person or institution.“
It is clearly worded here in the constitution that once formed; the independent institutions cannot be subject to interference by any person or institution within the Somali Federal Government including the Presidency.
However, the main point raised by Villa Somalia is that the formation of these independent institutions did not follow the correct procedure in regards to the Upper House of Parliament.
To test the legal basis of this argument, we must look at Article 71 of the Constitution which outlines the legislative powers of the Upper House of the Federal Parliament.
If we look at Article 71 subsection I, we see the Upper House’s participation in the process of appointing the members of government institutions and commissions. Interestingly, while it does state the role of the Upper House in regards to the Judicial Service Commission under subsection i, it fails to mention the IACC. In other words, the Upper House approval for the members of the IACC was not a constitutional requirement as argued above.
The reality is that Somalia’s government like other Presidential systems is divided into 3 branches which must remain separate from one another. This is:
- Executive comprising of the Presidency & the Government
- Legislative comprising of the Federal Parliament
- Judicial comprising of the judicial systems including the IACC
Consequently, does the decision by the President not only contradict the constitution but also infringe upon the independency of the judicial commissions? It seems so.
However, the matter of fact is that Somalia’s constitution remains provisional and underdeveloped. It still has a lot of legal loopholes and issues that need to be rectified including the dismissal of the independent commissions despite their independence of government institutions including the Presidency.
As Parliament approved the commissions, surely it ought to be Parliament that dismisses them in a vote of no confidence rather than a political team of advisors and the President with vested political interests at heart?
That is for legal experts to decide.
Significance of oversight during a critical period
The Somali government has taken a number of big financial decisions that could have a dramatic impact on Somalia’s frail and limited financial laws and regulations. Therefore, meticulous and continuous oversight of Somalia’s financial institutions is essential via independent commissions.
A prime example could be the recent decision by the Somali Central Bank to grant licenses to two major foreign banks to operate in Somalia.
This is a process that has been in clogged in the regulatory pipelines for many years. For instance, Banque Misr previously requested licensing in Somalia only to be rejected by the Somali government at the time led by former President Mohamed Abdullahi Farmaajo citing security concerns.
The reality is that Somalia lacks the basic regulatory framework to provide the necessary oversight to not only ensure the banks are engaging accordingly, but also to protect its own financial systems and consumers.
For example, Somalia does not have a law that outlines the legal basis for licensing foreign banks. The current financial institutions law 130 is very old and is inadequate in the contemporary financial world. For instance:
- It does not outline scopes of legal accountability and risk transfer ownership.
- It does not outline the ability of the Central Bank to act as a regulator with defined powers.
- This means that the CBS would not have the legal power to regulate foreign banks in Somalia adequately for example:
- CBS cannot assess a bank’s business model to mitigate possible impactsThere are no regulatory requirements on publishing of a bank’s capital and liquidity
- There is no definition or assessment of risk weighted assets
- This means that the CBS would not have the legal power to regulate foreign banks in Somalia adequately for example:
Consequently, all these loopholes and inadequacy provide the perfect breeding grounds for corrupt activities to thrive and flourish including shady international deals and embezzlement of public funds by rogue members of government. As a result, the necessity of an independent anti-corruption commission that is independent from all governmental institutions and is accountable to only Parliament is vital to maintaining Somalia’s financial credibility and trust during such a critical period of financial development.
We can also look at recent petroleum discussions with the Federal Joint Ministerial Committee on petroleum deals passing a new procurement agreement framework last month – committee appointed by President Hassan Sheikh Mahmoud.
This is despite the Puntland state government rejecting tendering procurement proposals put forth by the newly appointed Joint Ministerial Committee on Contractual Procurement.
We have seen during the latter period of President Mohamed Abdullahi Farmaajo’s caretaker administration in which Federal Minister for Petroleum and Mineral Resources, Abdirashid Mohamed Ahmed announced an agreement with an American upstream oil and gas exploration and production company called Coastline Exploration Ltd without Parliamentary approval. In separate statements, President Mohamed Abdullahi Mohamed Farmaajo and Prime Minister Mohamed Hussein Roble rejected the deal, declaring it “null and void.”
The signing of any deals while FMS remain opposed and with limited scrutiny from any independent commissions such as the Anti-Corruption Commission opens the Pandora box to possible shady dealings among other things.
Previous Corruption Scandals
The reality is that Somalia has been ranked amongst the most corrupt countries in the world. The incumbent President, Hassan Sheikh Mahmoud and members of his political group have been accused of corruption by various groups during his first Presidential term between 2012 and 2016.
It was in 2015 when 93 members of the House of the People, the lower House of the Federal Parliament, filed a motion to dismiss the President due to abuse of power including corruption.
International donors at the time complained about President Mohamud’s cash-strapped government not doing enough to fight graft, arguing that the theft of scarce government resources had frustrated efforts to build a functioning state.
A 2013 corruption scandal involving the repatriation of overseas Somali state assets frozen at the outset of civil war in 1991 further strained the relationship with international donors. President Mohamud and those close to him have repeatedly denied any wrongdoing at that time.
The Independent Anti-Corruption Commission has been praised by various international organisations including the UN for fighting corruption. Just last month, members of the committee completed high level training in Turkey. The IACC was a skilled and important body to oversee a government that requires the meticulous oversight during a critical period in Somalia’s financial journey. It will be difficult to immediately replace such skilled and experience staff at such a vital time.
Many are asking, why the Somali government has not put forward a list of members to replace the old.
This must be at the top of the government’s agenda.
Suldan is political analyst, podcaster and presenter interested in everything Somali! If you are too, feel free to contact him https://twitter.com/SuldanMohamed_
