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Somaliland Presidential & Local Councils Elections (Amendment) Bill 2007
Issue 294
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Commentary

By Ibrahim Hashi Jama

03/09/2007

Introduction

1.   The Presidential & Local Councils Elections (Amendment) Bill 2007 was submitted to the House of Representatives on 7 th July 2007, a week before the end of the 4 th session of the House. The Bill, which was prepared by the Internal Affairs, Defence & Security Committee of the House, by and large, amends sparingly the 2001 Presidential & Local Councils Elections Law .  In view of the relatively short period left before the planned date of the local elections in December 2007,  the Committee is commended for confining the changes to the minimum necessary provisions which  implement the changes brought about by the Voter Registration Law 2007 (which was signed into law by the President on 14 June 2007); the changes introduced in the 2005 House of Representatives Election Law, which need to reflected in the municipal and presidential elections;  and the changes proposed by the various international observers in the previous elections.

2.    One new proposal, which has been warmly welcomed by the Somaliland human rights organisations and civil society groups, is the introduction of quotas in the form of reserved seats at the local (district) councils for women and excluded minority groups. Somalilandlaw.com endorses the proposal and the following comments relate largely to the changes that need to be made to the Bill, as currently drawn, so as to realise the quota proposal.  Following the steer from the House Committee to confine the amendments to the essential and hopefully non-controversial ones, our other comments relate to some improvements in the draft Bill and a few other necessary changes arising out of the previous elections.   After the current round of elections, it is hoped that the Somaliland National Electoral Commission will start late next year wide consultations on a consolidation law that deals with all elections.

Quotas & Reserves Seats

3.    Much has been written about electoral quotas in various countries. Quotas have been very controversial in many countries, but in Africa, Asia, France, middle Europe and Latin America, many different types of electoral quotas for women have been introduced either as constitutional amendments or as election law amendments.  In some Arab countries, quotas for various groups (religious, ethnic and clan) have been adopted, and recently, a few such states have included ‘women’ as a group, for whom certain seats should be reserved. In Africa, a number of countries have also adopted quotas. For details of the quotas for women laws, see the IDEA Global Database of Quotas for Women IDEA ( International Institute for Democracy and Electoral Assistance) has published extensive information about quotas including Quotas in Arab Countries   and Quotas in African Countries The range of methods adopted in ensuring representation of specified minorities can be seen in the Minorities Rights Group, “ Electoral Systems and the Protection and Participation of Minorities ” 2006.

4.    There are many variations of quotas, but they can broadly be categorised on the basis of:

a)    how they are mandated,  i.e whether they are voluntary, or set out in a law or set as a constitutional provision/amendment; and

b)   at what stage of the electoral process they  are aimed at,  i.e aspiring candidates, confirmed candidates or elected persons.

Quotas and Somaliland

5.    The concept of reserved seats is not new to Somaliland.  The last two House of Representatives (1993 to 1996 and 1997 – 2005) selected by the various Somaliland Communities under a power sharing formula included  reserved seats for excluded minorities but not for women.  There have been no female members of the House until  the direct election in Septembers 2005 which put paid to the reserved seats for specific minorities, but of the 82 elected members 2 were female (with one coming through  an allocation list from an area where the election could not take place).  The second chamber of parliament, the House of Elders, which still consists of nominees of the various Somaliland communities, does not include any female members. This Bill, therefore, for the first time in Somaliland, sets, in ARTICLE 22A , two separate sets of mandatory quotas   at all local district councils which provide for reserved seats for candidates who are either female or who are from specified minority communities excluded on the basis of their clan and birth (descent). The excluded minority groups are defined in Article 1 of the Bill as:

“people who are excluded because of their clan and birth and, specially, the Gabooyeh communities (Madhibaan, Muuse Dheriyo,  Yibro and Tumaalo)”

6.     The reserved seats quota proposal is a form of positive discrimination and is aimed at addressing the long standing under- representation of women and excluded groups, which has proved impossible to address in the current and also in the pre-1969 electoral systems. 

Quotas and the Somaliland Constitution

7.     The legal justification for quotas in Somaliland is the combination of the following Articles of the Constitution :

a)    The EQUALITY CLAUSE in Article 8(1)(b) states that:

“All citizens of Somaliland shall enjoy equal rights and obligations before the law and shall not be accorded precedence on grounds of colour, clan, birth, language, gender, property, status, opinion etc.”

b)   In the context of political participation, not just as voters, but also as representatives of the electorate, Article 22 of the Constitution states that:

“1. Every citizen shall have a right to participate in the political, economic, social and cultural affairs in accordance with the laws and the Constitution.

2.  Every citizen who fulfils the requirements of the laws shall have the right to be elected and to vote.”

8. Article 10(2) of the Constitution explicitly states that Somaliland shall act in conformity with international law and shall respect the Universal Declaration of Human Rights 1947.  Art. 21(1) Of the Declaration states that everyone has the right to take part in the government of his country, directly or through freely chosen representatives.    Under Article 21(1) of the Constitution, the fundamental rights and freedoms in the Somaliland Constitution shall be interpreted in a manner consistent with the international conventions on human rights.  In this respect,  Articles 3 and 26 of the International Covenant on Civil and Political Rights (ICCPR), for example,  provide the following:

“3. The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”.  

“26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 

9.    The Human Rights Committee [1] of the ICCPR noted in 1998 that:

“... the principle of equality sometimes requires State parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant.  For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions.  Such action may involve granting for a time to the part of the population concerned certain preferential treatment in special matters as compared with the rest of the population.  However as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant”. 

10.   In the case of women [2] , the Convention on the Elimination of All Forms of Discrimination against women – CEDAW - (which Somaliland is not a party to, yet) states the that the adoption of

temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in this Convention, but shall in no way entail, as a consequence, the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.”

11.    Courts in various African and Asian countries have considered challenges to reserved seats or quotas on the basis of the principle of formal equality. In view, however, of the above international provisions and also municipal (state) laws, there are many examples [3] where the courts have upheld quotas as exceptional limitations (of the rights of men or majority groups to enjoy formal equality) which are reasonable, proportional and demonstrably justified in a free and democratic society [4] .  

12.   Persistent discrimination against Somaliland women and the members of excluded minority communities means that, in practice, they do not enjoy the fundamental right to be elected to public office in the same way that men and other Somaliland communities do. In this respect, they are therefore denied the formal equality accorded to everyone under Article 8(1) of the Somaliland Constitution and quotas are, therefore, special compensatory measures to help them attain that equality.  Voluntary promises by the political parties to include more women and members of excluded communities in their lists of candidates has not worked so far and, in any case, the pervasive effect of the Somali clan system is unlikely to produce formal equality at the ballot box. Women and excluded minority groups cannot wait for a constitutional amendment and these very modest quotas proposed in the local council elections are, in principle, a very welcome start of a long awaited change.  Understandably, these modest proposals are not time limited as they as they are unlikely to bring about relative parity of representation soon, but they are very much the start of a long process, which, hopefully, would also involve other positive action programmes to encourage the participation of women and members of excluded communities in all walks of life.

Quotas that work

13.    For the proposed quotas in the form of reserved seats to work, the provisions of the bill must be clearer and more precise in their coverage and enforcement.  The Somaliland electoral system for elections to local district councils and to the House of Representatives (and not the presidency) is based on proportional representation party lists and on multi-member districts (13 to 25 members in councils) or multi-member six regional constituencies for the 82 seats of the House of Representatives. The Law currently being amended applies to district councils (and not to the House) and it is also proposed that the previously closed party lists used in the 2002 local elections be changed   to open party lists, as was the case in the 2005 House of Representatives election.  In both systems, each voter has one vote which in the closed list was cast for one of the three parties, whilst in the open list system the vote cast for a candidate in a party’s list will count as vote for both that candidate and for his/her party.

14.    In the closed party list system, mandatory quotas on the parties in their lists accompanied by a formula to ensure that the women and excluded groups appear higher on the list would have been one option, but having opted for an open party list system in the forthcoming local election, reserved seats in each district council for women and excluded communities are better in ensuring that, come what may, the reserved minimum number of seats would be allocated to the affected groups.  We therefore support fully the concept of reserved seats, but are concerned about the low number of reserved seats proposed for both women and the excluded communities.

15.    Nonetheless, in any party list system, having reserved seats, on their own, without a concomitant obligation on the political parties to field at least enough candidates who can qualify for the reserved seats will not be effective. The Bill therefore needs to address clearly mandatory quotas for inclusion of women and members of excluded communities within each party list.

Improving the Quota provisions

16.    The following mainly procedural changes to the Bill will, in our view, ensure that the proposed quotas (reserved seat) are implemented properly.

17.    As quotas are an exceptional and, hopefully, temporary departure from the general constitutional principle of formal  of equality  of all citizens under Article 8 of the Constitution, the definition of  the “excluded communities” who are intended to benefit from the quota scheme must be precisely identified.  Interestingly, in Somaliland these quotas are likely to be much more widely accepted than the gender quotas, but the use of the  phrase “and specially – gaar ahaan, in Somali” before  the Gabooye community, as defined in Article 1 of the Bill, should be removed to avoid uncertainty. If there are any other excluded groups that should be included in the reserved seats, then they should be clearly identified in the Law.  This will avoid arguments such as whether Somalilanders of Arab origin (who did have a reserved seat in the pre 2005 non-elected House of Representatives) are included in this definition.  

18.   The drafting of Article 22A also needs considerable improvement, as it appears to refer to the political parties setting quotas and then, rather confusingly, moves on to set specific reserved seats for each type of district council. To make the quotas in the councils a reality a corresponding obligation on the parties to include candidates from the affected groups is also essential but this needs to be made much more clearly. Additionally how the quotas will be filled, in practice, should be set out in considerably more detail in the amended Articles 22 and 34A. Both these issues are explored further below.

Quotas and the party lists

19.   For the quota system to work there should be a corresponding obligation on the political parties to include in the candidates lists for each district council a minimum number of women and persons from the excluded groups. In the case of the excluded communities, as the reserved seats per district number only one, the minimum number of such candidates in each party list cannot be less than 2 as there has to be in each party list a second candidate who will be in a position to replace the successful “quota” member should the position become vacant during the 5 year term of the local council.  For women, although as it is highly unlikely that one party will get all the reserved seats for each district, it is preferable for the minimum quota of women candidates in each party list to be more than the set number of reserved seats  for each local council – perhaps, therefore,  the quota number plus 1 (see para 21 below).

20. Article 22(2) of the 2002 Law currently states that the total number of candidates in each party’s “closed” list must not be less than twice of the number of seats contested in each district. Now that open lists are proposed, the new Article 22(2) in the Bill limits the number of candidates in each party list to the same number of seats in each local council. In 2002 the ballot paper included only the names and signs of the political associations, then numbering six, but in the proposed open list system for Hargeisa, for example, the ballot will now contain the names and signs of 75 candidates (i.e 25 per party for the 25 seats) if the elections are only contested by the current three parties (and not also new associations [5] ). The issue of how many of these candidates must be women or members of the excluded communities needs to be addressed as an amendment, perhaps numbered 23(1A), in Article 23.

21. In some countries, separate lists are submitted for the reserved seats but this would complicate the ballot paper and may send the wrong signal that women candidates, for example should only be considered for the reserved seats, when they have every right to contest all seats. We would, therefore, recommend that there should be still be only one list of candidates for each party which , depending on the choice of each party, must contain the following total number of candidates and which should also include in each list, as a minimum, the following quota of women and  members of the excluded communities:

District

Party list

Women

Excluded Communities

Hargeysa Capital City

25 to 28

6

2

Grade A Districts

21 to 23

4

2

Grade B Districts

17 to 19

3

2

Grade C Districts

13 to 15

3

2

22.   Each party must sign a declaration on submission of their list that the above quota requirements have been complied with and identify clearly (for  the Electoral Commission’s attention)  the candidates from the excluded communities (a new Clause 23(2)(e)). The ballot papers will, however, only show the same information about ALL candidates.

Penalty for non-compliance

23.  In the event that a party fails to submit, by the closing date for the submission of the candidates’ lists, the minimum number of woman and excluded communities’ candidates, the Commission shall give the party 2 days to re-submit the list.  If the new list is still deficient, and the party later wins quota seats which are more than can be allocated to its own suitable candidates, than these seats shall be forfeited and shall be allocated to the party next in line in the quotient and remainders formula (a new Clause 26(3)).   For the avoidance of doubt, the same considerations should apply if a quota seat won by a particular party becomes vacant, for any reason, during the 5 year term of the Council and there are no suitable persons in the unsuccessful reserve list of candidates in that party’s list, who can inherit the seat. These scenarios are unlikely to happen, but this will act as a clear incentive for the parties to obey the quota law (new Clause 26(4)) [6] .

Reserves seats and the PR system

24.  The new [7] Article 22 also needs to reflect clearly how the reserved seats will be won, in the light of the total votes cast for each candidate in the open party lists, and will therefore need additional clauses to cover the following three points.

25.  Firstly, after the total valid votes in each district are counted, the quotient (i.e total average votes required for each seat) for the “non-quota” seats is worked out on the basis of the total votes cast in the district divided by the number of the “non-quota” seats. These seats are then distributed to the parties (as usual in both local and parliamentary elections) on the basis of the Hare Quota – i.e the quotient per seat and the largest remainders (Qaabka Kooshunka iyo Hadhaaga). This time, however, the allocation of successful seats within each party will not be done on the basis of the position in the party lists, but (as was introduced in the parliamentary elections) on the basis of the number of votes cast for each candidate in each party’s list. This also now means that women and excluded minority candidates will have a chance to compete with everyone else, as well, and shall not be shunted off only to the few quota seats. If that is not the case, and they are confined only to the few quotas seats, it would indeed be unconstitutional, as this would narrow their chances of winning and would amount to unlawful discrimination.

26.  Secondly the quotient for the “quota” seats for women should be worked out in the same manner by dividing the total number of votes cast in the districts with the number of the women quota seats.  The seats would then be divided between the parties on the basis of the quotient and largest remainders, but the quotas seats will only go to the women candidates in each party, who have not succeeded in getting a non-quota seat, on the basis of the number of votes cast for each female candidate in that party list. Should that specific seat become vacant, then this formula will also identify the next women candidate in each successful party list, who will be entitled to fill it.

27.  Thirdly, as the quota for the excluded minorities is only one seat in each district, there is no logic in working out a quotient and the fairest way is for that seat to go to the party that garnered the largest vote in each district. The seat will then go to the candidate from the excluded communities (ECs), certified under the procedure set out in paragraph 22 above) who has garnered the highest votes amongst the other certified candidate from the ECs, unless s/he has already otherwise obtained a seat. The next candidate from the ECs in this list will entitled to fill the seat, should it become vacant.

Conditions for prospective candidates – no new barriers

28.   One other glaring proposed amendment, that ought to be deleted, is the new Article 33(8), which re-introduces in Somaliland, after decades, a property owning qualification for candidacy for the local elections. This is a retrograde step and is rather incongruous in a law, which is introducing special measures to bring into the political arena women and excluded groups. This property owing qualification erects a new insurmountable barrier and is very likely to fall foul of Article 8 of the Constitution (see above) as it is indeed according precedence on the basis of property and there is no pressing and essential reason to justify such a condition which has a clear discriminatory impact on women, excluded communities and many other less advantaged social groups in Somaliland.

29.   The following other changes in the conditions for candidacy are, in our view, also restrictive and would further limit, unnecessarily, the pool of candidates. These are:

a)    Article 33(6) which introduces a two year residence in Somaliland;

b)    Article 33(3) which introduces a new highly subjective condition that a person must be known by others to be a devout muslim; and

c)    Article 33(7) which, on top of the requirement for secondary education, introduces an additional hurdle of three years experience in management.

30.   At a time when the Law is introducing quotas to bring in more excluded groups into local politics, these additional conditions are sending a different signal and are limiting the pool of candidates to the reasonably well educated, middle aged (not less than 35 years - an existing condition), very pious, property owning former managers and administrators who have not lived outside country during the two years prior to the election!   Limitations on the fundamental right to stand for election must be only those, which are necessary in a democratic society and none of these conditions can be justified under this test.  In this respect, we urge that that age limit of 35 be reduced, as this leaves out a considerable number of young and able persons.

Assessing the holding of the balloting

31.   The assessment of whether the local elections cannot be held on time is left to the National Electoral Commission (the Commission) and the parties in Article 22(8) but neither this law nor the Regions & District Law 2002 (as amended) [8] expressly addresses the issue of the extension of the term of office of the current district councils if any postponement of the election beyond their 5 year term takes place.  This issue may need to be addressed, if not now, but when the NEC makes a recommendation under this new provision.

32.   Article 22(9) the Bill sensibly leaves it to the Commission to assess any situation where it may not be possible to hold the elections at any district or parts thereof, but the Bill then needs to cover how the seats would be distributed in the districts where no election could take place, for the moment, in the whole of the  district or where, more likely, elections do not take place in parts of the district. For national presidential elections, this issue does not matter at all, but in local elections, an agreed formula for allocating the seats (as we have done before in the previous local and parliamentary elections) can be included in this Bill.

The National Electoral commission

33.   The last 9 months have shown that there is a lot that need to be changed about the nomination and appointment of the members of the National Electoral Commission and about their powers and duties, but, in the light of the fast approaching election, there are only  a few non-controversial essential legal changes that we would recommend:

a)      Article 11(1)(c) of the 2002 Law – To avoid periods of interregnum between two sets of appointments of the Commission, we recommend a new clause which makes it clear that if at the end of the 5 year term, a new Commission is not appointed, the incumbent Commission shall continue to serve until the date when the new Commission’s appointment is confirmed by the House of Representatives.

b)     Article 12(2) – change current upper age limit of 60 to 70.

c)    Article 14 – give the Commission statutory power to issue, after consultation and agreement of the parties, binding codes of practice for the all aspects of the management and conduct of the election. They have issued in the past non-statutory codes.

d)     Add a new 14A - This will ensure that, in future, if there is any defect in the appointments system of the Commission, the lawful decisions of the whole Commission will stand and cannot be impugned on the basis of this defect:

Decisions of the Commission- The duly arrived lawful decisions or actions of the Commission or of a specific or a group of commissioners in the performance of their lawful duties will not be voided by any defect in the nomination or appointment of or eligibility for membership of a member or members of the Commissioners”. 

In Somali “Go’aanadda ama talaabooyinka si sharciga waafaqsan ay Gudiga Doorashooyinku ama xubin/xubno Gudigu ay gaadheen ama ay qaateen iyagoo u fulinaya hawshooda, si sharciga waafaqsan,  laguma duri karo ama laguma baabi’n karo dhaliil ku saleysan habka loosoo magacaabay ama losoo  ansixiyey xubin/ xubno Gudiga ka mid ah”.

e)     One important future measure: To avoid the sudden of loss of expertise in one go, we also recommend that the next time the Commission appointments are made, consideration should be given to increasing the number of commissioners to 9, and their normal term of office to 6 years, but with the transitional exception that 6 of the first 9 appointees will only serve for shorter periods of 2 years (3 members) and 4 years (the other 3 members), all 9 of which being eligible for re-appointment for only one more full term.  With 3 members retiring every 2 years, the Commission will retain, at any time a majority of its expertise. We make no recommendations about the appointments procedures, at this stage.

Reflecting some of the changes in the 2005 Parliamentary Election Law

34.   There are still various improvements introduced in 2005 Law, which if not replicated in the 2002 Law, will not be applicable to the local councils and presidential elections.  Examples of these are:

a)     Substitute the whole of Article 29 of the 2001 Law dealing with meetings and demonstration with Article 23 of the 2005 Election Law dealing with demonstrations. There is no reason why meetings should be as strictly regulated as demonstrations.

b)     Substitute the whole of Article 30 of the 2001 Law with Article 24 of the 2005 Law. It is therefore no longer necessary for parties to submit their campaign leaflets or literature to the relevant mayor (who may well be a candidate in the local elections) as was, unfortunately, the case in the 2001 Law.  Such censorship in a democracy was totally unnecessary.

c)     Substitute the whole of Article 48 of the 2001 Law with Article 45 of the 2005 Election Law dealing with the period of the voting i.e from 6.00 am, rather than 7.00 am.

35.   Articles 62, 63 and 64 of the 2005 Election Law dealing with allegations against the members of the Electoral Commission and with contraventions of the electoral law and procedures currently apply only to the House of Representatives’ elections. If it is thought fit to extend these provisions to the local councils and presidential elections, then similar articles should be added to the Amendment Bill. We repeat, however, the Somaliland Forum’s 2005 comments on these articles to the effect that the Electoral Commission cannot be given, under our constitution, powers to fine ordinary citizens.  Any infringements or unlawful acts committed by ordinary citizens must be dealt with by the police and the courts.  The contraventions listed in Article 64 do not cover the range of possible electoral offences that are not currently covered by the Penal Code and we recommend (again) the introduction of a list of electoral offences.  Examples of such offences (with penalties, depending on the severity of the offence, ranging from fines to imprisonment of up to few years), and based on South African laws are:

  • Undue influence on a person to vote  or to vote for any candidate or party or attend a demonstration, assembly etc
  • Interference with the independence or impartiality of the Electoral Commission or Electoral officers at every level.
  • Preventing party candidates, electoral officers, and accredited observers reasonable access to voters.
  • Preventing unlawfully the holding of any political meeting, march or demonstration.
  • Knowingly assisting or persuading a person to vote when they have no right to do so.
  • Impersonating other persons and then casting a vote.
  • Casting or attempting to cast more than one vote.
  • Removing or attempting to remove indelible ink on ones or other persons hands with the intention of casting further votes.
  • Making false statements in connection with any such statements required for election purposes.
  • Printing or manufacturing or supplying or using unlawfully any election materials, including ink.
  • Removing, concealing or destroying any election materials.
  • Removing unlawfully or defacing placards, notice and election boards during the campaigning period.
  • Refusing to follow the lawful directions or orders of the Electoral Commission and electoral officers and any police officers at or outside the polling stations.
  • Interfering with or intentionally interrupting or delaying the voting activities including the count and the transport of ballots and election materials to and from the polling stations.
  • Attempting unlawfully to influence the outcome or conduct of the elections, at any stage.

( or in Somali:

§ In qof lagu dirqiyo inuu codkiisa siiyo musharax ama xisbi gaar ah ama inuu ka qayb qaato mudaharaadyo iwm.

§ In la farogeliyo madax-banaanida iyo dhexdhexaadnimada Gudida Doorashada ama shaqaalaha doorashada heer kastaba ha ahaadeene.

§ In loo diido musharixiinta, xisbiyada iyo shaqaalaha doorashadu inay la kulmi karaan cod-bixiyayaasha.

§ In si sharci darro ah loo diido in la qabto shir siyaasadeed, banaan-bax ama mudaharaad.

§ In aad si kas u gargaartid inuu cod dhiibto qof aan xaq u lahayni.

§ In cod lagu dhiibto magaca qof kale.

§ In mar wax ka badan aad dhiibato ama isku daydid inaad dhiibato codkaaga.

§ Inaad masaxdid ama isku daydid inaad masaxdo khadka aan baaba’ayn adigoo u jeeda inaad mar kale cod dhiibatid.

§ Inaad been sheegtid wixii ku lug leh habka doorashada.

§ Inaad qarisid, baabi’isid  ama aad meel kale geysid qalabka doorashada.

§ Inaad si sharci darro ah aad u tuurtid ama u baabi’isid xayaysiinada doorashooyinka inta doorashadu socoto.

§ Inaad diidid  ammarada sharciga ah Gudida Doorashada ama shaqaalaha doorashada ama poliiska jooga goobaha cod-bixinta.

§ Inaad dhabqisid ama si kas aad u qastid ama u habsaamisid hab-u-socodka doorashada ama tirinta codka.

§ Inaad isku daydid inaad si sharci darro ah u bedeshid natiijada tartanka doorashad a.)

(Source: Somaliland Forum Constiution & Law Committee Comments on the 2005 Law – January 2005).

The role of the media

36.  We recommend the addition of a new Article (may be numbered 28A) on the role of the media which makes it clear that every party and every candidate must respect the role of the media before, during and after an election campaign and may not prevent access by members of the media to public political meetings, marches, demonstrations and rallies; and must take all reasonable steps to ensure that journalists are not subjected to harassment, intimidation, threat or physical assault by any of their representatives or supporters.

Reasoned court decisions about electoral disputes

37. Add to Article 65 of the 2001 Law a new Clause 1 (numbered 65(1A) which confirms that the Supreme Court must give a detailed reasoned judgment in any of its decisions relating to the electoral disputes submitted to it. A similar Clause relating to the Regional Court in respect of local elections disputes should be added to Article 62(1).  The court decisions should set out the evidence and arguments put to the courts by the Commission and the parties, and any candidates, as well as the reasoned conclusions of the court, including any dissenting minority opinions. Many international observers’ reports have commented on the lack of any reasons and explanations for the decisions of the Supreme Court in 2003.

Format of the changes

38. We commend the House Internal Affairs, Defence & Security Committee in producing the draft changes as insertions of the 2001 Law, which would make it easier to re-produce the 2001 law and the changes in one readable document.  As a copy of the 2001 Law has to be distributed to all polling stations (under Article 37 of the Law) and will be used by the parties and by observers, one law covering all the changes will be greatly appreciated.

For any enquiries or comments, please e-mail Ibrahim@somalilandlaw.com

[1] General Comment 18 (Thirty-seventh session 1989) Report of the Human Rights Committee Vol 1, UN doc A/45/40

[2]  See also the 1952 Convention on the Political Rights of Women , which came into force in 1954.

[3] For an African example, see the Lesotho Court of Appeal decision of Molefi Tsepe v the Independent Electoral Commission and others (2005) C of A (Civ) No. 11/05, which upheld the legality of a 2004 Electoral Law amendment which introduced a one-third quota of all local government council seats for women for the next three elections.  

[4]  This is the general test that limitations of fundamental freedoms and rights have to meet, and was best articulated in the Canadian Supreme Court case of R v Oakes (1986) 1 SRC 03.

[5]   If as being proposed, the local elections will be contested by other new political associations under the scheme set up in Law no:14/2000, we would strongly recommend that the closed party lists used in 2002 be retained.

[6]  The issue of filling vacancies in Dsitrict Councils is dealt by Article 28 of the amended Districts and Regions Law (article 37 in the old 2002 Law), but as there are no proposals to amend this law and this point relates only to the reserved seats, it is not inappropriate to add it to these current amendments.

[7]   The current Article 22(3) was in any case very short and simply stated that the seats won would be allocated on the basis  “proportional representative (sic) system”, which was the simple Hare Quota based on the total votes cast for each party.

[8]   Currently although Article 20(2) of the amended Regions & District Law states that the term of the outgoing councils will end 14 days after the Regional Court declares the election of the new Council, this is still subject to the 5 year term which, rather confusingly, commences, according to Article 20(1) of this Law from the date of the declaration of the result by the regional Court.

Ibrahim Hashi Jama has been chairing the Somaliland Forums' various legal, referedum, elections and constitutional committees for the past eight years and stepped down last month, but remains as a member of the Forum. Much of his time is now devouted to his new website www.somalilandlaw.com and can be contacted at Ibrahim@somalilandlaw.com

Source: somalilandlaw.com

 


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