By Ahmed Abbas
The elections of 2020/2021 is surrounded by many uncertainties including whether the election will be held on schedule and moreover if its outcome will earn general consent like the elections that took place from 2000 to 2017. As constitutional electoral deadlines nears there is growing worries of whether the election will take place at all. The recent agreement between the Federal President of Somalia, the presidents of the three Federal Member States (FMSs) of Galmudug, Hirshabelle and South West, additionally with the Governor of Benadir Region on 20 August, 2020 did not resolve neither the uncertainties nor the worry of no election scenario. The agreed continuation of the negotiations on electoral model in Mogadishu is taking place under strained relations. Moreover the FGS and FMSs, although are the principals, are not the only stakeholders that have legitimate claims to take part or at least be consulted before stipulating the final election model.
Particular focus on itemized scrutiny of the text D3 agreement will likely reach misleading conclusions unless it is viewed within the context of president Farmajo power strategies. President Farmajo belong to the crop of despotic leaders that once their dream to capture power is realized, even by democratic means, will use the authority to remain in the power indefinitely . For Farmajo election is only the one that can secure his re-election which can only be possible when there are no other credible candidates. Because of that Farmajo never relied on a single strategy but parallel paths, each securing the incumbent’s reelection come February 2021 as the stepping stone to life time power ambition.
D3 agreement is the third option that president Farmajo resort to after previous two models failed to materialize. The first option was named “Closed Single Constituency Election” and based on the Draft Nation Electoral bill (NEB) passed by the Council of Ministers on 2 May, 2019. The model is probably unique on its own, which elects simultaneously the legislature and the president in single direct (OPOV) ballot election. Article 12 of the draft electoral bill states that the presidential candidate of the political party that wins the majority of seats will automatically win the presidency, without the NEB being explicit “whether this will be based on the combined seats of the Houses of Federal Parliament, or only the House of the People alone” . The intrigue in this option is to skip the two election cycles by first electing the members of parliament and subsequently the election of the president by a joint session of the federal parliament, required by the current Federal Constitution. This is making a radical shift from the current parliamentary system to unelected presidency enjoying exclusive executive powers. The legislation of final versions of electoral law affirming the parliamentary character of Somali government dashed the president’s preferred model. During the presidential assent of the electoral law on 20 February 2020, president Farmajo stated that this is not his choice.
The continuation of the slogan of holding OPOV elections was unabated but in reality the president, the HoP and NIEC were disingenuous of the implementation of the law. From there on, holding direct election was false target but a cover up for extension strategy of respective three offices. The law in itself contain unconstitutional provisions, suffers serious gaps and many other discrepancies that render the law impossible to implement.
The address at the plenary of the HoP by the Chairperson of NIEC on 27th June unveiled the proper intension of president Farmajo. The head of the election commission admitted that the remaining time is not enough to hold OPOV election, which can be fulfilled if the commission is granted an extension of either 8 months or longer or 13 months depending on whether the biometric registration is omitted or pursued. There is growing indications that popular resistance against extension could reach its climax if the HoP endorses either of the proposals by the head of the electoral commission and because of that extension, it will be an impossible objective to achieve and with it dies the OPOV falsehood.
The electoral option agreed in Dhuusamareeb is called “Electoral Constituency Caucus”. In the standard electoral system terminology, however, constituency is defined as the location where one seat is contested by number of candidates. In this respect electoral constituencies of the HoP of the Federal Parliament of Somalia are equal to the size of house composed of 275 legislators. In reality what the agreement is referring as constituencies are Polling Centers (PC) and not constituencies.
Regarding the electorate this option claims to form not “Electoral Constituency Caucus” but in reality is based on “Indirect Electorate Caucus” (IEC). Playing on the terminology does not change the substance of the option agreed by the signatures of Dhuusamareeb 3 agreement. In any Direct Election (DE) each eligible voter cast his/her vote on the voter’s personal capacity and not on behalf of others and because that it is called universal suffrage which is the highest exercise of the sovereignty by the people.
In nutshell, naming D3 model as constituency based is a great misnomer while in reality is blending together incompatible elements of direct and indirect election. The distinctive feature of the indirect election in comparison to the direct one is not only that the members of HoP of the FP parliament of Somalia are elected by delegates (electorate) selected by communities that share seat/s according 4.5 agreed in Djibouti in 2000 and not directly by universal suffrage. In addition to that, indirect election is an ad-hoc arrangement decided by concerned stakeholders and not only by state organs vested with responsibilities that concern direct elections. Indirect election, unlike direct election, is not governed in reference to constitutional provisions, laws passed by legislative organs, and other statuary norms issued by formal electoral bodies. On the contrary, indirect election is governed on rules and regulations, including disputes resolutions mechanisms that are part of a consensus political agreement between stakeholders. Implementation bodies of indirect election are formed jointly by stakeholders and not by pre-existed body like NIEC that the constitution and law that established the commission mandate only to matters concerning OPOV election. Finally, the competition between political parties are element of direct election.
The 2016 election is perfect prototype of indirect election decided by National Leaders Forum (FLN) that gathered the leadership of Federal Institutions (Federal President, Speaker of the House, and Prime Minister) and Presidents of the Federal Member States (FMSs). The ninth parliament initially approved the holding of indirect election. The draft implementation package of the election, however, did not reach the plenary of the House because of the failure of a special committee formed by the house to study the draft proposal before submitting it to House for endorsement. The implementation of 2016 election become finally effective by a presidential decree and not by parliamentary endorsement. Current HoP on the other hand is totally adversarial to indirect election option and hence there is no reason to submit it for the approval to a known hostile entity.
On the basis of the above observations on the difference between Direct and indirect election, D3 agreement is a perfect stratagem to secure the re-election of president Farmajo. The agreement installs NIEC as the sole agent that have exclusive authority on any matter the election. All election offices shall be established by the commission and all the election staff answerable only to it. The final decisions of delegates rests with selection committee appointed by the commission and not by the concerned communities. NIEC has also not only the power to establish twenty (20) polling centers in the order four (4) centers in each of five (5) existing FMSs in addition of the full discretion to transfer the electorate to a polling centers electorate outside the jurisdiction of respective member states. Delegates from community that shared one seat shall be increased from 51 in 2016 to 301 in 2020 which tops the national electorate from 14,025 in 2016 to 82,000 delegates in 2020. Delegates from three (3) or five (5), equaling 901 and 1505, will be pooled together to form Indirect Electoral Caucus (IEC) to elect jointly the legislators of a given slot. The agreement states that the election is conducted in one day in spite of fact that each delegate shall cast multiple votes. The agreement instructs NIEC to speed up the operation in order to hold the election on time. The promised timely election by signatures of D3 agreement is very unlikely to happen because lack of election calendar in the agreement and the reputation of NIEC of not meeting deadlines.
In nutshell, NIEC is the agency that will determine where the election will take place, the participants of the election, the candidates and the winners. President Farmajo is well aware that NIEC has no role in indirect election but trusts that only the commission is the only entity that manufacture his re-election with the incumbent. FMSs are seldom mentioned in the agreement as supporters and facilitators of mission of NIEC.
During the closing speech of D3, president Farmajo stated was that FMSs member have authority over state elections while federal elections are exclusive prerogative of Federal State. The Article 120 of the constitution affirms that “The establishment of the legislative bodies of the governments of the Federal Member States is a matter of the constitutions of the Federal Member States.” There is no, however, any provision in the Provisional Constitutions that supports the president’s claim of Federal Government’s exclusive power on federal elections.
It seems paradoxical that President Farmajo put the federal Interior Ministry in charge of the state elections while at the same time denies any role to the states in federal elections, against the constitution in both cases. Violation of the constitution become during the tenure the current FGS not an exception but the norm. All the provisions of the constitutions have been violated by president Farmajo and the HoP accept the timelines of federal legislature and the presidency both ending on 27th December 2020 and 8th February 2021, respectively. Consequently Somalia, for some time, there is no constitutional legislature, presidency and Council of Ministers. The de-facto holders of such offices are in reality occupants and loss legitimacy by the end of respective tenures.
Under the present circumstances there must be constitutional mechanism to reroute Somalia back to legitimate governance. Only two options, one within the formal existence the current government and another more radical one. The first is dependent on the president Farmajo’s acceptance all-inclusive indirect and equal opportunity election along the same template of model of 2016 model in terms of rules and regulation, structures, and delivery mechanism. Since this model have delivered in late 2016 and early 2017 an outcomes that were not only accepted but celebrated by Somali people across all divisive factors inside and outside Somalia there is no sufficient time to venture to new untested adventure.
The unfortunate legacy of the spoiling of the outcome by Federal Government should not prejudice the model. The fixing of the lacunas of the model and further enhancement are subject to negotiations without tampering with external elements that are incompatible with indirect election. The agreement of this election model should be stipulated within September and made operational by October this year. This gives roughly two months which is sufficient to conduct the election of the two houses and held the official ought of the elected members of the federal parliament. Holding presidential election by joint session of the two houses will be very smooth undertaking on 8th February 2021.
Knowing that Farmajo is very unlikely to show the least humility will do every means in his command by all means to either get flat re-election ticket or perpetuate no deal on election. In such worst case scenario the only solution rests with the triggering of the third paragraph of Article 3 of the constitution which establishes that “The Federal Republic of Somalia is founded upon the fundamental principles of power sharing in a federal system”. The power sharing in a federal system is between Federal State and FMSs is stipulated in Article 48 of the constitution. Accordingly, “In the Federal Republic of Somalia, the state is composed of two levels of government: (a) Federal Government level and; (b) Federal Member States.
In the event that Federal level collapses by 9th February 2021, FMSs are automatic depositaries of residual sovereignty, symbol of the national unity and foundation of rerouting Somalia back to constitutional path of peace and state building. FMSs and credible opposition must be conscious of their historical responsibly to forge care-taker arrangement that bridge the gap between 9 February 2021 and restoration of legitimate path to constitutionality. International Community must take its role to fulfill its obligation towards Somalia from the current impasse to a peaceful transition of power.
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Ahmed Abbas was lecturer of the faculty of Economy of the Somali National University ( 1979-81), he is also member of the former committee of experts for the finalization of the current Provisional Constitution of Somalia.
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