By: Ali Haji Warsame
During the height of the COVID-19 pandemic between mid-January and March 2020, the Australian government implemented increasingly restrictive travel bans that led to the country closing its borders to all non-residents, adopting mandatory hotel quarantines for fourteen days and a travel ban on Australians travelling overseas. The Commonwealth of Australia is a federation of six states and two self-governing territories, the Australian Capital Territory and the Northern Territory. Each state and territory has its own parliament and government, but the Australian Government oversees national matters like defence, foreign affairs, and trade. The national government is the Australian Government, also referred to as the federal government or Commonwealth government.
As precautions for the spread of the virus, the government adopted to closure of different areas across the country. However, the federal government of Australia found itself in conflict with the states regarding the closure of state borders and the legal authority responsible for enforcing these closures. The question at hand was whether the central government or the state authorities held this power. This dispute was ultimately brought before the High Court for resolution.
After thoroughly examining the case, the High Court ruled in favour of the states, confirming that they possess the absolute authority to close borders to contain the spread of the disease. The Court explained that it was responsibility of state forces to carry out the order, rather than national forces. The High Court served as the arbitrator in this case, and all parties were required to accept its decision.
Similarly, Kenya’s supreme court nullified the result of the general election in 2017 in an unprecedented ruling that dealt a severe political blow to then-the incumbent president Uhuru Kenyatta. It will pit the election winner, Mr Kenyatta, against Raila Odinga, a veteran opposition leader, who challenged the result in the court, claiming widespread rigging. The High Court has ruled that a new vote has to be held within 60 days which constitutes a new re-run of the election.
The court has argued that the electoral commission had “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution”. The judge, David Maraga, further concluded, in a verdict of four out of the six judges, that this ruling, the first of its kind in Africa, cannot be appealed.
The supposed winner, Mr Uhuru Kenyatta said he disagreed with the judgment but would respect it. “I disagree with it because millions of Kenyans queued and made their choice and six people decided that they would go against the will of the people,” he said. He added that he was “ready to go back to the people with the same agenda, no change, that we delivered”.
The opposition leader, Mr Raila Odinga, alleged that many results forms from polling stations were forged and that the electoral commission’s computer systems were tampered with. Eventually, all sides accepted the verdict of the High Court and returned to the voting process.
These two incidents highlight the crucial role of state institutions in resolving conflicts. Federal systems frequently face disputes over authority between central and state levels, and without a properly functioning independent judiciary, the potential risk of further conflicts and a deterioration of the system increases. After a bitter civil war that left deep scars on many aspects of life in the country, the Somali people agreed to adopt federalism as a means to maintain national unity.
The federal provisional constitution grants exclusive powers to the central government to handle national matters such as defence, foreign affairs, monetary policy and immigration while stating that all other issues must be negotiated between the central government and the states. In 2004, the Transitional National Government (TNG) transitioned into the Transitional Federal Government (TFG), laying the foundation for the new state institutions. During this period, Puntland was the only existing state in the country along the Federal Government of Somalia (FGS). The Provisional Constitution highlights the importance of power-sharing and collaboration between the two levels of government. This system is still evolving, with ongoing efforts to clarify roles and responsibilities through constitutional amendments and negotiations.
Fast forward to 2012, when Hassan Sheikh Mohamud was elected as president, and by this time, most Federal Member States (FMS) had either been established or were in development. The last one, Hirshabelle, was officially established in 2016, just prior to the federal election that led to President Mohamed Abdullahi Farmaajo taking office.
Like his predecessor, he tended to strengthen the central government, which in turn weakened state authority. This led to heightened tensions with Puntland and Jubaland states, leading to increased political instability. No leader has managed to invest in the development of state institutions, particularly those meant to serve as the final arbitrators in national-level disputes between the Federal Government of Somalia (FGS) and the Federal Member States (FMS), such as independent constitutional reform committees, an independent judiciary, and essential governance agencies like the auditor general, central bank, and procurement agency.
In my recent article titled “The Role of Transparency Institutions in Strengthening Governance in Somalia,” I discussed the crucial role that governance and transparency institutions play in enhancing resilience within the federal system. These institutions include the Legislative Body, the Central Bank, the Auditor General, the Accountant General, The Anti-Corruption Agencies, the Public Procurement Authority, proactive Civil Society Organizations, and responsible Media. However, it is important to note that without an independent judiciary, these institutions alone can’t serve as checks and balances.
The effective operation of public institutions is essential for building trust in the system, promoting inclusivity, and ensuring good governance through transparency, participation, accountability, and equity. This, in turn, fosters respect for the rule of law and helps create fair, efficient, and responsive systems that address societal needs. Consequently, establishing strong public institutions will enhance the functioning of federalism and provide a means to resolve disputes without resorting to a “my way or the highway” mentality.
An independent judiciary is a fundamental pillar of a fair and democratic society. Its significance cannot be overstated, as it upholds the rule of law and also protects fundamental rights. One of the primary reasons an independent judiciary is crucial is its role in safeguarding individual rights and freedoms.
The judiciary acts as a protection for citizens’ rights and freedoms by establishing checks and balances on the legislative and executive branches of government. Judges are able to make decisions independently, without political interference. This system ensures accountability and promotes fair dispute resolution, as people rely on impartial courts to resolve disagreements justly. It guarantees that justice is served without bias or external influence. Effective federalism depends on credible and trusted arbitration and dispute resolution.
There, an independent judiciary is crucial in a federal system of governance, where powers are distributed between central and regional governments. Its role is vital in maintaining balance, resolving disputes, and ensuring justice at all levels of governance.
Disputes often arise between different levels of government in federal systems, as seen in the cases of Australia and Kenya. An independent judiciary is crucial to ensure that both central and regional authorities respect constitutional boundaries, thus preventing any encroachment or overlap in their powers. Furthermore, independent courts play a neutral role in resolving disputes not only between central and regional governments but also among states or provinces. This helps promote fairness and harmony within the federation.
Federal systems generally depend on a written constitution as the supreme law, regardless of whether that constitution is complete or provisional. An impartial judiciary interprets this document to ensure that its provisions are consistently applied, thus safeguarding the rights of both states and individuals.
By 2025, Somalia may once again encounter a situation similar to that of 2017 and 2022, characterised by fragmented state institutions, the lack of an independent High Court to adjudicate and resolve disputes and unilateral decisions affecting state elections and resource allocations. The deep divisions within the country make it challenging to envision a path forward or any hopeful resolution. Without independent federal institutions, it becomes impossible to build trust among the states in the leadership of the Federal Government of Somalia (FGS).
Somalia has yet to engage in a genuine and constructive debate regarding its current situation. Without the necessary institutions to act and serve as a last resort and final safeguard, discussions on state-building, national reconciliation, and harmonising the country’s laws at both the central and state levels will continue to be ineffective. If Somalia wants federalism, the established law in Somalia, to work effectively, it must first create the institutions designed to uphold the system and function impartially.
According to Somalia’s provisional constitution, articles 105 and 106, stipulate that the judicial authority is vested in the courts and it is independent of the legislative and executive branches of the government whilst fulfilling its judicial functions. Article 108 further stipulates the national court structure in the form of three levels, namely, the Constitutional Court, the Federal Government level courts and the Federal Member State level court. The highest court at the Federal Government level shall be the Federal High Court, whilst the highest court at the Federal Member State level shall be the Federal Member State High Court.
The article 109B further states the formation and establishment of the Constitutional Court, which will be composed of five (5) Judges including the Chief Judge and the Deputy Chief Judge. The Constitutional Court has to hear and decide cases as stipulated in Article 86 of the Constitution concerning challenges to the constitutionality of a law passed by the Federal parliament and to resolve any dispute between the Federal Government and the Federal Member State governments, or among the Federal Member State governments.
It also hears and decides cases arising out of disputes between organs of the Federal Government, concerning their respective constitutional powers and duties. So, without an independent judiciary, it is impossible to trust and accept the verdict of the courts in any meaningful way. That’s where Somalia’s governance system is leaking and the recent dispute between the FGS and Jubaland State of Somalia is a clear testimony of this issue.
For Somalia, transitioning its judiciary to a federal system could strengthen governance and promote stability across its diverse regions. This transition is particularly important for ensuring the independence of judges from political interference at both the federal and state levels. By doing so, trust in the judiciary can be built, leading to fairer decision-making. Establishing a federal supreme constitutional court as the highest authority to resolve constitutional disputes and provide uniform interpretations of the law will enhance acceptance and transparency at all levels. Additionally, the Executive should avoid exploiting the judiciary for its own purposes and allow the federal system to properly work in the country.
Ali Haji Warsame MBA, MA, CPA and CGMA
Executive Director, Hiil Institute
Former Puntland Minister of Education
Email: ali.warsame@eau.edu.so