Legal Memo:Relating to the confirmation of the appointment of the Prime Minist

Sunday, October 24, 2010

Under the Somali Constitution, the President has the power to appoint a Prime Minister (see article 44 of the TFG Charter) and the Parliament confirms the appointment made by the President.  Since the Parliament has the discretion to confirm the appointment made by the President, it may as well reject the appointment. If there is a right to confirm there might also be a right to reject.  Ever since the system of a President appointing a Prime Minister has been introduced into the Somali politics, no trace or precedence could  be  found where the Parliament has rejected an appointment made by the President ab initio (out right).  Therefore, any rejection of the appointment of a Prime Minister by the Parliament shall be an innovation and unprecedented. Article 49 of the Charter stipulates; “A person whose appointment as Prime Minister has been confirmed by the Parliament shall assume office upon taking the oath”.  The assumption of office by a Prime Minister depends upon the confirmation of the Parliament.  On 14th of October the President of the Republic appointed the new Prime Minister, H.E. Mohamed Abdullahi Mohamed and introduced him to the Parliament in person on Wednesday October the 20th. The Prime Minister gave a speech outlining his priorities and programme of action.  Immediately after the Prime Minster finished his speech, the Speaker of the Parliament declared that he had two contradictory motions in hand, one of which 140 MPs requested confirmation by open vote and another where 40 MPs requested confirmation by a secret ballot. The Transitional Federal Charter contains no provisions relating to the way or the method that the Parliament can express its confirmation.  Article 71(2) of the Charter provides that “the 1960 Somali Constitution and other national laws shall apply in respect of all matters not covered and not inconsistent with the TFG Charter”. Thus, since the Charter does not provide how or the way the Parliament shall express its confirmation to the Prime Minister, the 1960 Constitution must be referred to and shall apply.  Article 82(2) of the 1960 Somalia Constitution provides that “the National Assembly shall express its confidence or non confidence of the Prime Minister and his ministers by means of a motion stating the grounds thereof approved by a simple majority in open vote”.  According to this article, confidence by the National Assembly to the Prime Minister or the confirmation of office of the Prime Minister must be expressed in open vote.  Therefore the motion by the 140 MPs requesting confirmation by open vote must prevail and the other motion must be rejected since it does not conform with article 82(2) of the 1960 Constitution.  Ironically and unexpectedly, the Speaker of the Parliament made a ruling in which he stated that according to article 40 of the internal regulations of the Parliament, where there is a conflict of two motions one of which is requesting a vote in open vote, and the other is requesting a secret ballot, the one requesting secrecy has the priority and shall prevail. Article 40 of the internal regulations addresses motions pertaining to the making of new legislations, and not votes of confidence for a new Prime Minister or his government. Moreover article 40 is in contradiction to article 82(2) of the 1960 Constitution which unequivocally provides that the vote of confidence requested by the Prime Minister or his government should be expressed in open vote.  Thus, article 40 of internal regulations and the ruling of the Speaker of the Parliament contradict article 30(6) of the Parliamentary internal regulations enshrining that any motion that contravenes the Islamic Sharia, the Charter or the Constitution, the laws of the land …. shall be null and void.  Additionally, as per article 30 of the internal regulations, the Speaker has to ascertain that motions conform to the Charter and the 1960 Constitution, before motions are tabled. And once motions are tabled, members should be allowed to debate them—a process the Speaker has failed to do. Under the present circumstances, the ruling of the Speaker of the Parliament is erroneous and unacceptable in that it: a)  Failed to apply article 82(2) of the 1960 Somalia Constitution where no similar provisions could be found in the Transitional Federal Charter. b)  Failed to conform and apply the provisions of article 30(6) which categorically states that any motion contravening the Sharia Law, the Charter or the Constitution and the other laws shall be null and void.  The motion requesting secret vote contravenes article 82(2) of the 1960 Constitution. c)  The Speaker failed to give members of the Parliament an opportunity to debate and express their opinion or vote on and choose one of the two motions. d)       The Speaker also ignored intentionally the convention (tradition) in the Somali politics that a new Prime Minister should not be rejected or refused before assuming office. Therefore, the Somali President calls upon the Speaker of the Parliament to uphold the law and to not obstruct lawmakers from discharging their solemn Constitutional duties, especially at these critical times when we need a government that can stand to address the mammoth tasks facing



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