Flouting the Rule of Law

“These laws we exhaust ourselves to write are useless—they don’t use them.”

—Former SNM fighter, arrested in 2008 for protesting the Guurti’s extension of President Riyale’s term in office.[30]

 

The administration of President Riyale has consistently flouted legal and constitutional restraints on presidential power, threatening the human rights of Somalilanders. Neither the legislative nor judicial branches of government have acted as an effective check on presidential power nor pressed for greater adherence to the rule of law. As is discussed below, the president’s continuing refusal to submit to elections is a crisis made possible by the same fundamental problem.[31] Somaliland’s undeniable, if fragile, successes in safeguarding human rights cannot be secured, or its many failures remedied, until this pattern of lawless governance is ended and rights-respecting institutions become embedded in Somaliland.

Somaliland’s System of Government

Somaliland’s constitution provides for a national government and six regional governments headed by governors that are each divided into several district administrations. Below is a brief description of the central government institutions that feature most prominently in this report:

The Executive: Somaliland’s constitution provides for a directly elected president with strong executive powers.[32] Under the president are the vice president and Council of Ministers, which is appointed by the president.[33] The president is limited to two five-year terms of office.[34]

The Courts: Somaliland has a four-tiered court system—a Supreme Court, Regional Appellate Courts, Regional Courts, and District Courts.[35] The Supreme Court is also the Constitutional Court and is empowered to overturn unconstitutional laws and government actions.[36] Its members are all appointed by the president for open-ended terms, though the president’s choice for the chairman of the court is subject to confirmation by the two Houses of Parliament.[37] In practice much of the work of the lower courts in criminal justice matters has been usurped by the executive’s Regional Security Committees, which are discussed in detail below.

The House of Representatives: One half of Somaliland’s bicameral legislature is its directly elected House of Representatives, whose members serve for five-year terms.[38] The first and so far only legislative elections were held in 2005 and resulted in a strong combined majority for the opposition Kulmiye and UCID parties. The constitution gives the House broad legislative powers over financial matters.[39] Its most potent check on executive power is its right to approve, reject, or amend the government’s annual budget and the right to inspect annual expenditure reports that the executive is obligated to prepare.[40]

The Guurti: The second half of Somaliland’s bicameral legislature is the Guurti, or House of Elders. The constitution provides that the Guurti’smembers should be selected every six years according to an undefined process to be set down in law, but no such law has yet been passed and its members have been in place since 1997.[41] The Guurti is made up of clan elders from across Somaliland. It is an outgrowth of the council of elders used as a tool of public mobilization by the SNM during the conflict against the Siad Barre government.[42] To a large degree, the Guurti represents an attempt to ensure a strong link between the traditional structures of governance central to Somaliland’s maintenance of peace and the territory’s formal institutions of governance.

An Executive Flouting the Law

Somaliland’s president and his administration habitually ignore some of the most important formal constraints on the power of the presidency. This is partly a reflection of very low institutional capacity across all public institutions but even that lack of capacity is in large measure an issue of political will. As one prominent Somaliland academic put it to Human Rights Watch, “The government is not trying to put institutions in place that work properly. The question is, why not?”[43] This extralegality manifests itself in various ways that infringe on the rights of Somaliland’s citizens and pose a threat to the broader protection of those rights.

Security Committees

Perhaps the starkest example of the executive’s broader tendency to act outside the law is its reliance on extralegal Security Committees as instruments of detention. Somaliland’s Regional and District Security Committees are institutions originally set up by the Siad Barre dictatorship as blunt instruments of repression. They were resurrected by the administration of former President Egal in the 1990s and have been in use ever since. While by no means used to commit the same kind of abuses today, the committees function in much the same manner as in the past. Their members, consisting of government officials and security officers, meet to order the detention of people brought before them without trial or any pretense of due process. Hearings often last just a matter of minutes and accused individuals are regularly sentenced en masse even where their alleged crimes bear no relation to one another.

The workings of the Security Committees and the abuses that flow from them are discussed in detail below.[44] By using bodies that have no viable legal foundation, make no effort to conform to the rights enshrined in the Somaliland Constitution, and which elicit no rebuke from the courts, the executive has appropriated much of the power of the judiciary for itself. In the process it has stripped away most of the fundamental rights that are guaranteed to everyone brought before the courts. Activists and analysts told Human Rights Watch that they believed this was less an insidious attempt to destroy the role of the judiciary than a product of old attitudes that President Riyale and other top officials inherited from the Siad Barre era—specifically, that untrammeled executive power is acceptable and even desirable, whether the law permits it or not.[45]

President Riyale’s administration claims that Somalia’s 1963 Public Order Law makes the Security Committees legal and gives them the power to detain anyone “seen as a menace to public order.”[46] The Public Order law does remain in force today, to the extent that it does not conflict with Somaliland’s constitution or fundamental human rights principles.[47] But the law makes no mention whatsoever of the Security Committees. As leading Somaliland legal scholar Ibrahim Hashi Jama has written, the Security Committees are “based on Siyad Barre’s draconian decrees and not the 1963 law.”[48] The Public Order law does grant broad powers of detention and other extraordinary powers to the authorities, but only if a state of emergency is declared.[49] In any event the committees are primarily used not for alleged national security offenses but to deal with ordinary criminal and juvenile cases in order to save the government the trouble of proving charges in court—which many government officials interviewed by Human Rights Watch openly acknowledged.[50]

The procedures of the Security Committees completely ignore fundamental rights that are guaranteed by Somaliland’s constitution.[51] These are described in detail below.[52]

Other Patterns of Extralegal Government Action

The executive’s refusal to adhere to legal restraints on the handling of government expenditures has an impact on the government’s ability to address pressing national concerns, such as health care and education. The constitution empowers the House of Representatives to approve, reject, or amend the government’s annual budget.[53] In practice, the executive has simply ignored legislative amendments to the budget and sometimes operated without any budget at all rather than consider those amendments.[54] For part of 2007, the president rejected legislative amendments to the budget that would have cut allocations to the presidency and other ministries and simply employed the budget it originally submitted to the House of Representatives as though it had been passed.[55] The 2009 budget, however, was passed without incident.

Practically speaking, the executive’s refusal to accept any legislative role in the budget process is of limited importance because there is no evidence to indicate that the administration attempts to keep its expenditures in conformity with the budget. The constitution requires the administration to submit an expenditure report to the House of Representatives at the end of each financial year, but it habitually fails to do this.[56] This means that there is no official record of how the government actually spends its money—or in the words of one local activist who monitors the budget process, that “all spending is extra-budgetary in practice.”[57] As one parliamentarian complained to Human Rights Watch, “We have never received an expenditure report since 2006. So if we approve the budget or don’t approve the budget, what value does it have?”[58]

The net result of this lopsided approach to the budgeting and expenditures is that there is virtually no transparency around government expenditures in Somaliland. This issue is especially important given that even according to the 2009 budget most of the government’s limited expenditures—more than US$24.5 million out of a projected $40.8 million in budgeted expenditure—is tied up with broadly worded allocations to the security forces and the executive.[59] Meanwhile, the budgetary allocations to the country’s dilapidated schools, health care system, and courts total just over $4 million.[60] But without any budgetary transparency, it is impossible to know whether these amounts are properly allocated.

Other examples abound of the administration’s tendency to operate outside of the law to infringe on human rights, whether freedom of expression or the right to periodically chose one’s government. In 2002 the president issued a decree forbidding the licensing of any private radio networks. The decree did not specify any basis in law for the exercise of this power and many Somaliland activists and lawyers argue that one does not exist.[61] In 2006 the president asked the Guurti, or House of Elders, to extend its own mandate by four and a half years even though a 2003 law provides that any extension of the Guurti’s mandate should be carried out by the House of Representatives.[62] The Guurti, in turn, has twice extended the president’s own term of office without much pretense of meeting the constitutional requirements for such an action.[63]

In 2007 the president also used the Guurti to extend the term of office of Somaliland’s local district councils even though there was no legal basis for such a move.[64] Many activists allege that in this President Riyale colluded with Somaliland’s two established opposition parties.[65] This move had an importance deeper than control over the councils themselves, since Somaliland’s constitution stipulates that only the three strongest parties emerging from local elections can compete in national elections. By failing to hold those polls the government has frozen any potential newcomers out of the political scene and ensured that the same three parties—and in point of fact the same three men—that competed in 2003 will compete again in the next presidential elections.[66]

Informal Limits on Presidential Power

None of this is to say that the president’s power is unconstrained. Unpopular government actions have on occasion been challenged and withdrawn by popular opposition and the engagement of clan elders and opinion leaders.[67] Somaliland’s government remains fundamentally a product of political compromise, negotiation, and consensus and the presidency is often not strong enough to defy the diverse coalition of clan and other interests that support it.

This reality imposes informal limits on presidential power which have worked well enough to partially offset the dysfunction of legal and constitutional constraints. As one prominent activist put it, “When there is a problem people come out and demand that it be changed. Many people have got it in their minds that this is what they have fought for.”[68] The result, as another analyst put it, is that “Some in government don’t believe in our democratic process, but no one has enough power to destroy it.”[69] But on their own these informal restraints are inadequate and dangerously fragile, as evidenced by the resulting human rights violations, described below.[70]

A Weak Legislature

Somaliland’s elected House of Representatives has been under opposition control since the country’s first legislative elections in 2005. Under the constitution the House is the primary legislative arm of the government and has broad powers to check presidential power through its power to approve, reject, or amend the national budget.[71] In practice, however, the institution has proven almost powerless.

Part of the explanation for this state of affairs lies with the Parliament itself, which has strenuously avoided direct confrontation with the president. As Deputy House Speaker Abdiaziz Mohammed Samaleh acknowledged to Human Rights Watch:

We don’t have much say in what is done. Most decisions are taken by the President. We have the power to reject the budget, but it has happened that if when reviewing it we say no to this or that, the President rejects [our decision]...to avoid having any clashes we have done what he wanted us to do.[72]

The Riyale administration acknowledges that the House of Representatives has been relegated to a minimal role but explains this as a function of the members’ own incompetence and uninterest in living up to their responsibilities. Foreign Minister Abdillahi Duale told Human Rights Watch that the House is characterized by “a lack of capacity and a lack of political maturity,” adding that, “By and large they are simply doing political haggling instead of their jobs.”[73]

However, when the House of Representatives has attempted to challenge presidential prerogatives on important issues, the executive has simply ignored it. The presidency has brushed aside and ignored attempts by legislators to exercise their powers over the budget.[74] This is an especially important issue since parliamentary oversight of government finances was a key concession made by former President Egal in negotiating the form and substance of Somaliland’s constitution.[75] In 1999 the House of Representatives passed a nonbinding resolution stating that the entire 1963 Public Order law was unconstitutional, largely because of the president’s assertion that it allowed for its use of the Regional Security Committees.[76] The government ignored the resolution and Somaliland’s minister of justice insisted to Human Rights Watch that it did not even exist.[77]

At the same time, Somaliland’s Guurti often behaves as though it has been entirely captured by the presidency. The Guurti’s individual members have not faced any kind of challenge to their own mandates since 1997 and the institution’s critics allege that it has become complacent, corrupt, and overly beholden to the presidency.[78] Suleiman (“Gaal”) Mahmoud Adan, the Guurti’s chairman, told Human Rights Watch:

The Guurti has overstayed our usefulness. We are too old in age as well as in holding a term of office—we were neither re-elected nor re-selected by the clans. We have become too arrogant and too corrupt by overstaying in power—like parties that stay long in power anywhere in the world. I hope there will be elections in 2010 for the Guurti as well as the House of Representatives.[79]

As described above, the presidency and the Guurtihave together acted to extend both of their terms in office repeatedly and with questionable legality, and to postpone district council elections without any legal basis at all.[80]

A Dysfunctional Judiciary

Somaliland’s judiciary has been the subject of wide criticism by activists, independent analysts, and government officials alike. Concerns raised include the legal competency and basic functioning of the judiciary and the unwillingness of judges to hold the government to the laws and constitution.

Somaliland’s judges earn considerably more than other civil servants—roughly US$400 per month.[81] Beyond this, however, the government has done little to invest in the judiciary. In 2009 the overall budget for the courts and justice ministry is roughly $950,000—by way of comparison, the budget allocates $400,000 to maintain the residence of President Riyale.[82]Somaliland’s minister of justice told Human Rights Watch that his ministry spent one third of its budget in 2008 on the purchase of six secondhand cars.[83] One judge interviewed by Human Rights Watch asserted that his court received no resources from the government beyond salaries and stationary and did not have access to printed copies of the laws—though he did not see this as a major problem. “All we are doing there is judging,” he said. “What we do is just give out warrants to arrest people.”[84]

According to Somaliland’s minister of justice, there are roughly 100 judges employed across Somaliland.[85] They are mandated to employ a combination of civil, customary, and shari’a law, but only a tiny fraction of judges have appropriate legal qualifications in any of these fields. A UN official who has worked with Somaliland’s judicial system told Human Rights Watch that, “95 percent of the judges have no formal legal qualifications.”[86] Likewise a prominent Hargeisa attorney told Human Rights Watch that he knew of only three sitting judges in Somaliland who had law degrees. “How can you secure a fair trial from a judge who doesn’t even know the law?” he asked.[87] The Ministry of Justice, which is mandated to ensure that new laws are in conformity with the constitution and oversee the workings of the judiciary, employs no lawyers.[88]

The courts at all levels in Somaliland have consistently failed to challenge evidently illegal exercise of government power. No court has exercised any kind of oversight over the Riyale administration’s frequent bans on all political gatherings and public demonstrations.[89] On a day-to-day basis this is a problem reflected in the large number of remand prisoners occupying prisons across Somaliland. Somaliland’s constitution requires that individuals taken into custody be brought before a judge within 48 hours of arrest. Police officials regularly flout this requirement and judges do not challenge them. One judge told Human Rights Watch that in minor criminal cases in his jurisdiction the police simply punished defendants by imprisoning them for several days or a week rather than bothering to take them to court, and that he saw nothing wrong with this.[90] As one prominent activist in Hargeisa lamented, “The law says within 48 hours you must be brought before a judge—but people sit in police stations for days and weeks without even knowing why they were arrested.”[91]

When police do bring criminal suspects to court, they frequently and often repeatedly ask the court to recommit the suspects for further custody without producing any evidence against them. The courts acquiesce to these remand requests with such regularity that they effectively allow indefinite detention without charge. A UN official estimated to Human Rights Watch that on average there are between 30 and 40 remand prisoners in each of Somaliland’s six main prisons at any given time—a large proportion of the overall prison population.[92]

 

The Supreme Court

Somaliland’s Supreme Court has exclusive jurisdiction over issues of constitutional interpretation, including lawsuits that challenge the constitutionality of government actions.[98] In practice, the court has not proven itself independent of the executive and has never declared any law or government action to be unconstitutional. To some extent this is an unsurprising result of the constitution itself, which gives the president the power to appoint and dismiss the justices of the Supreme Court at his discretion. Only the appointment of the court’s chairman must be confirmed by the House of Representatives.[99]

The Supreme Court has displayed such a strong desire to avoid political controversy that its chairman simply refused to consider the most sensitive constitutional case brought before it to date. In May 2007 SHURO-net, at the time a very active umbrella group of human rights organizations in Somaliland, sponsored a lawsuit challenging the constitutionality of the government’s use of the Security Committees as instruments of detention.[100] According to the former SHURO-net director, the chairman of the Supreme Court, Mohamed Hersi Ismail, called SHURO-net’s  lawyer into his office and told him and the director that he would not allow the complaint to be registered with the clerk of the court, let alone issue a decision on its merits. After the lawyer reportedly said that the court had an obligation to receive the case even if it ultimately chose to dismiss it, he was removed from the building, arrested, and held for approximately one hour in the central police station in Hargeisa.[101] At the time of writing Human Rights Watch’s efforts to contact the chairman have been unsuccessful. As discussed below, five months later SHURO-net was effectively dismantled following an internal leadership struggle that was characterized by blatant government interference.[102]