On Monday 24th December 2018, President Mohamed Abdullahi Farmaajo issued a decree appointing 4 new judges to the Supreme Court. This makes the number of judges so far appointed by the President 10 whereas the number provided for by the constitution is 9. The appointment of the judges by the President is illegal since it exceeds the number and contravenes the nomination procedures stipulated by the constitution of the Federal Republic of Somalia
Given the fact that the Chief Justice was appointed in an illegal manner, it is important to point out that such an appointee is not legally entitled to propose the appointment of additional judges of the same ranks to a court of law where his own stay is in question. It is also equally important to note that these appointments go against the merit-based competition for filling job openings in the different branches of the state while also undercutting the women’s participation in judicial services in breach of the constitutional principles.
As stipulated in Article 87: Section 2 of the constitution, the President is required to perform his duties within the country’s legal frameworks but in defiance of this, the President blatantly violated the following articles in the constitution and other relevant laws. These include:
Article 3: Section 4 which speficies the separation of power between legislature, judiciary and executive; Section 5 which mandates women’s participation in filling elected or appointed positions; Article 90 Section (j) which obliges the President to appoint the Chief Justice and the Supreme Court judges upon the proposal of the Judicial Service Commission; Article 106 which spells out the independence of the judiciary from the legislature and executive; Article 111A Section 1 which defines the powers of the Judicial Service Commission; Article 109A Section 6 which requires the Judicial Service Commission to appoint, discipline and transfer members of the judiciary; and Article 118 Section 5 which stipulates that state jobs can only be filled through competition.
Law number 28 passed by the parliament in 2014 which stipulates the powers and responsibilities of the Judicial Service Commission as detailed in articles 2, 5 and 15,
particularly on the powers and procedures to appoint and remove the judges. And Law number 3 passed by the parliament in June 1962 which stipulates the procedures by which the judiciary should be established, with particular emphasis on Article 19 which specifies the procedures by which the supreme court judges are appointed.
The President’s violation of the constitution and other laws of the country, as shown above, may lead to a loss of Somali people’s trust in a statebuilding process at the heart of which lies an independent judiciary. For these reasons, we:
1.call on the president, as the head of the state, to safeguard the constitution and supremacy of the law and excecise his power within the legal frameworks of the country;
2.urge the illegally appointed judges to resign from their illegally assumed positions bearing in mind that they will be held accountable for their actions;
3.warn of the dangers that can result from hearings presided over by illegally appointed judges to pass on crucial sentences such as death, imprisonment and confiscation of properties;
4.call on the parliamentary chambers to hold the President accountable for the government’s failure to take its role in establishing the Judicial Service Commission and for appointing persons deemed favorable to the executive for judicial positions in breach of the law.
5.call for the formation of the Judicial Service Commission, which up to now is tactically delayed by the government, as this would contribute to the emergence of an independent judiciary.
Finally, we are calling on the Somali people to closely monitor the precarious actions of the government that undermine the independence of the judiciary and the legislatives bodies. The increasing threat by the executive to consolidate and accumulate extra-legal powers would certainly inhibit progress and or obliterate the fragile state-building process and nascent democracy in Somalia.
The National Salvation Caucus consists of members of parliament and executives associated with four major political parties in Somalia namely Nabada, Ileys, Wadajir and UPD as well as independent parliamentarians who are not yet affiliated with political partie