2018 January 24 DRAFT CONSTITUTION FOR A FEDERAL REPUBLIC OF SOMALIA

DRAFT CONSTITUTION FOR A FEDERAL REPUBLIC OF SOMALIA

DRAFT CONSTITUTION FOR A FEDERAL REPUBLIC OF SOMALIA

DRAFT CONSTITUTION FOR A FEDERAL REPUBLIC OF SOMALIA

Presented To:

SOMALI INTELLECTUALS FORUM

NAIROBI, KENYA

CHAPTER 1Federal Republic of Somalia (FRS)

SECTION 1 Somalia is a Sovereign Republic

2. Public Seal

3. Supremacy of the constitution

CHAPTER 2The States

4. Establishment of the States

CHAPTER 3Institution of the States

5. State Institutions

6. States Presidents

7. Constituencies and Electoral Districts

8. State Parliaments

9. Speakers and Deputy Speakers of the State Parliaments

10. Parliamentary secretaries to the state Parliaments.

11. Legislative powers of the State Parliaments

12. State Cabinets

13. Party with majority to form State Cabinets

14. Kadhi’s courts

15. State Judiciary

16. State Police

17. State Capital

18. State Committees

CHAPTER 4Traditional Monarchies (isims)

19. Recognition of the traditional monarchies of Somalia.

20. States to enhance the recognition of the traditional monarchies.

21. Advisor duties and ceremonial roles of the monarchies.

22. Traditional monarchies to enhance peace and security in Somalia.

CHAPTER 5Federal Government

23. Council or collective Federal Presidency

24. Powers of the Federal President

25. Federal Parliament

26. Federal Speaker and Deputy Speaker

27. Parliamentary secretary to the Federal Parliament

28. Legislative Powers of the Federal Parliament

29. Federal Cabinet

30. Federal Supreme Court

31. National Electoral Commission

32. Consolidated fund and contingency fund

33. Federal committees

34. Attorney-General

35. Public service commission

36. Controller and Auditor-General

CHAPTER 6The States and the Federal Government

37-47. Inter state and Federal Government relationships

48. Right of states to contact relief organizations.

49. Rights of states and nationalities.

CHAPTER 7Somali Charter of Freedoms and Rights

50. Guarantee of the Rights

51. Fundamental Rights

52. Democratic Rights

53. Mobility Rights

54. Legal Rights

55. Detention or Imprisonment

56. Search or Seizure

57. Arrest or Detention

58. Proceedings in a Criminal Trial

59. Cruel and inhuman treatment

60. Language used in a Criminal Trial to be understood by the accused.

61. Equality before the Law

62. Enforcement of the Rights

63. Other Rights and freedoms not affected

64. Exceptions

65. Application of the Charter

66. Citation

67. Amendment of the Constitution

  1. Referendum or Plebiscite

CHAPTER 8Citizenship

69. Every person of Somali Origin is a Somali citizen

70. One of the parents being a citizen of Somalia

71. Birth outside Somalia

72. Female spouse of a Somali citizen

73. Holder of a valid Somalia passport

74. Parliamentary provision for citizenship

75. Duties of the citizen and the state

CHAPTER 9Interpretations and Savings

76. Meanings

PREAMBLE

WHEREAS, the people of Somalia have suffered unprecedented hardships on a scale never witnessed before in the history of Somalia due to the civil war; and

WHEREAS, over 300,000 (three hundred thousand) Somalis have lost their lives directly or indirectly caused by the war, and

WHEREAS, over 6 million Somalis (three-quarters of the Somali population) have been rendered homeless and became refugees and/or displaced after the civil war; and

WHEREAS, this upward trend of refugee population growth from Somalia is an indication of civil disorder economic disparity, political intolerance and consequently a deficiency of social peace and tranquility; and

WHEREAS, minority groups, women and the children of Somalia have been subjected to terrible abuses of their fundamental human rights and indignities including physical elimination; and

WHEREAS, a major part of an improved and sustainable Somali society is the establishment of social, economic and political peace where all persons can develop and grow without fear and prejudy; and

WHEREAS, peace and stability as essential pre-requisites for development and prosperity require the end of all hostilities, eradication of mistrust and hatred, the healing of the wounds caused by the civil war and the establishment and maintenance of good neighborliness and co-operation; and

WHEREAS, for the fulfillment of the aforementioned conditions and for the reign of a just and lasting peace to prevail, the proclamation of a democratic order is a categorical imperative.

NOW THEREFORE, this Constitution witnesseth as follows:

We the people of Somalia, in order to form a more perfect and peaceful union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare and secure the Blessings of God to ourselves, our future generation and to our posterity, do hereby solemnly and sincerely and in Brotherhood of the Somali people ordain and establish this Constitution for the Federal Republic of SOMALIA.

CHAPTER 1

The Federal Republic of Somalia (FRS).

1. (a) Somalia is a sovereign Republic.

  1. This constitution pledges to the people of the Federal Republic of Somalia to establish a Federal, representative and democratic Republic.

(c) Islam is the religion of the Federal Republic of Somalia and main source of the Laws of Somalia. The personal Law and Status of the Muslim people of Somalia is governed by the general principles of the Islamic Sharia. All laws of the Republic of Somalia will be guided by the general principles and doctrines of Islam.

(d) Sovereignty belongs to the Somali people who exercise it in the forms determined by this constitution and on the basis of consultation (shura) on all crucial and important Laws and development efforts. No part of the people and no individual may claim sovereignty for themselves nor arrogate to themselves the exercise thereof. The Somali people constitute an indivisible entity and are the source of the sovereign power of the Republic of Somalia.

(e) The National territory is sacred and inviolable and includes the continental territory, the Islands, the territorial sea, the sub soil, the air space above and the continental shelf.

2. (a) The public seal of Somalia shall be such device as may be prescribed by or under an Act of Parliament of the Federal Republic of Somalia.

(b) The National flag of the Federal Republic of Somalia is light blue, rectangular, and bears a white star with five equal points in the centre.

(c) The Emblem of Somalia is composed of a blue shield with a star of five silver points and a gold border. The shield surmounted by a battlement with five points in Moorish style, the two lateral points halved, is borne by two leopards rampant in natural form facing each other, resting on two lances crossing under the point of the shield, with two palm leaves in natural form interlaced with a white ribbon.

3. 1. This constitution of the Federal Republic of Somalia shall have the force of law throughout Somalia and, subject to Section 67 of this constitution, if any other law is inconsistent with this constitution, this constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

2. (a) The generally accepted rules of International law and International Treaties and Conventions concluded by the Republic and published in the manner prescribed for legislations have the force of Law.

  1. The Republic repudiates war as a means of settling International disputes.

(c) It accepts, on conditions of equality with other states, the limitations of sovereignty necessary for an arrangement, which ensures peace among Nations.

CHAPTER 2

States

4. Somalia shall be divided into and shall be so constituted by the following states whose boundaries shall conform to the existing, traditional and internationally accepted lines:

(a) AWDAL STATE – Comprising of NorthWest, AWDAL, parts of Togdheer and Sanaag region.

(b) PUNTLAND STATE – Comprising of Bari, Nugaal, Sool, parts of Mudug, Galgadud, Sanaag and Togdheer.

(c) CENTRAL STATE – Comprising of Hiraan, Middle Shabelle, Banadir, parts of Muduq, Galgadud and lower Shabelle.

(d) INTER-RIVER STATE – Comprising of Bay, Bakool, parts of Gedo, Middle Juba and Lower Shabelle.

(e) JUBALAND STATE – Comprising of Lower Juba, Middle Juba and Gedo region

5.5 (a) Somalia shall be divided into such number of Constituencies and Districts having such boundaries and names as may be prescribed by any Law enacted pursuant to and under the Provisions of this Constitution.

(b) Each state shall be divided into such number of Constituencies and Districts as may be prescribed and each District and Constituency shall elect a fixed number of members to the Federal Parliament and State Parliament respectively.

5.6 (a) It is hereby proclaimed that there shall be a separation of Power and independence of each of the three organs of the Government whether Federal or State; namely the Executive, the Legislature and the Judiciary. The three organs of Government shall be distinct of and independent of each other in their functions, powers and duties but shall Mutatis Mutandis complement each other in affairs of the Government. Each of the arms of the government shall ensure sufficient checks and balances on the exercise of Power of the other.

(b) All constitutional offices established by or pursuant to this constitution shall enjoy security of tenure and the Officers appointed to these offices shall exercise their duties, functions and powers independently and without any interference from all or any of the organs of the Government and their removal shall be strictly in accordance with this Constitution or any other Law made pursuant to this Constitution.

CHAPTER 3

State Institutions

5.7 Each of the states will have the following state institutions:

(a) State President

(b) State Parliament

(c) State Cabinet

(d) State Judiciary

(e) State Police

(f) State Capital and

  1. Such other state institutions that are incidental to and connected with the

effective running of the affairs of the States. 5.7 (a) There shall be a President of each State who shall be the Executive Head of that State and shall be elected by the people of the State in a General Election.

(b) (i) The state President shall hold office for a term of five (5) years beginning from date on which he is sworn in as president. (ii) No person shall be elected to hold office as State President for more than two (2) terms.

(c) (i) The State President shall be elected in accordance with the Provisions of this Constitution and subject thereto, with any Act of Parliament or Enactment regulating the election of the State President.

  1. A person shall be qualified to be nominated for election as State President if, and shall not be so qualified unless, he:

  1. Is a citizen of Somalia and that; and

  2. Has attained the age of thirty-five years; and

  3. Is registered in some Constituency as Voter in elections to the

State parliament; and

  1. He is nominated by a Registered Political Party in the manner

prescribed by or under an Act of Parliament or Enactment; and

  1. He is of sound mind and is not under a sentence of death or

imprisonment; and (f) He is not a bankrupt and had no history of bankruptcy.

(d) Subject to the provisions of this constitution, the state President shall have the power to:

(i) Prorogue and dissolve the State Parliament; provided always that the state President shall only dissolve Parliament where:

The term of office of the State Parliament has expired in accordance with this Constitution; or there is no Party with a clear majority in the State Parliament to form the Government and there is no agreement between the Parties represented in the State Parliament as to the formation of a coalition Government; or

There is cause for Parliament to be dissolved because of the inability of the State Parliament to conduct its affairs in accordance with its mandate and the Speaker of the State Parliament so advises the State President. And provided that the term of the State Parliament may be extended despite the expiry of its term of office or its dissolution suspended if the national interest is at stake.

(ii) Give presidential assent to Bills and legislative Enactments emanating from the state parliament.

(iii) Appoint and dismiss for good cause the Commissioner of the State Police.

(iv) Nominate and appoint Judges of the High Court of the State and the Kadhi’s Courts of the State with the advice of the Judicial Service Commission.

(v) Constitute and abolish offices for the State and terminate any such appointments.

(vi) Appoint and dismiss the Prime Minister of the State.

5.8 (a) The Legislative Power of each State shall be vested in the State Parliament which shall consist of the State President and the members elected to the State Parliament.

(b) A person shall be qualified to be elected as a member to a state parliament in Somalia if, and shall not be so qualified unless, at the date of this nomination for election.

(i) He is a citizen of Somalia and of the State and has attained the age of 21 years; and

(ii) He is registered in some Constituency as Voter in elections to the State Parliament; and

(iii) He is able, unless incapacitated by other physical or mental cause, to take active part in the proceedings of the State Parliament; and

(iv) He is nominated by a Registered Political Party in the manner prescribed by or under an Act of Parliament or Enactment; and

(v) He is of sound mind and is not under a sentence of death or imprisonment; and

(vi) He is not a bankrupt and had no history of bankruptcy.

5.9 (a) There shall be a speaker and deputy speaker in each State Parliament and they shall be elected by the members of the State Parliament either from among the members of that Parliament or from outside.

(b) The Speaker of the state parliament shall be an ex- officio member of that parliament but shall not vote on any question before the State Parliament. Provided that the Speaker shall exercise a casting vote to break a tie in a Parliamentary motion where only a simple majority was required but not otherwise.

5.10 (a) There shall be a Parliamentary secretary to each State Parliament who shall be responsible for the running of the affairs of the State Parliament.

(b) The Parliamentary Secretary shall be a person in the Civil Service and shall be appointed by the Government of the State.

5.11 Subject to the provisions of this constitution, the legislative Powers of every State Parliament, shall include, and shall not be limited, to the following: –

(a) Power to make laws of the peace, order and good government of the state and parts thereof.

(b) Subject to and without prejudice to Section 28 (b) of this constitution, power to lay and collect local taxes and other revenues within the borders of the state; provided always that a certain percentage (to be prescribed by Law) of such revenue collected by the state shall be credited into the consolidated fund of the Federal Republic.

(c) Power to make laws and regulations for the following: –

(i) Education

(ii) Property rights within the Sate or parts thereof

(iii) Civil Law

(iv) Water and sanitation

(v) Industry and Energy

(vi) Administration of Justice

(vii) Health

(vii) Agriculture and Natural Resources within the borders of the State

(ix) Social security and social amenities.

  1. Municipal institutions and other matters connected therewith and

incidental thereto.

(d) State Parliament may make provision for the establishment of a contingency fund and for authorizing the minister for the time being responsible for the state finance, if he satisfied that there has a risen an urgent and unforeseen need for expenditure for which no other provision exists, to make advances from that fund to meet that need.

5.12 (a) There shall be formed in each state a cabinet to be headed by a Prime Minister and shall be composed of such Ministers as may be determined by the Prime Minister for the effective running of the affairs of the State Cabinet.

(b) Subject to the powers of the Executive state President, the powers and functions of the Government of the state shall be exercised by the state Cabinet and the Prime Minister shall be the head of the State Government and is answerable to the state Parliament for the conduct of the State Government.

5.13 (a) The Prime Minister shall be the leader of the Registered Political Party with the highest number of seats or majority support in the state parliament.

(b) (i) The Prime Minister shall choose the members of his Cabinet from among the members elected to the State Parliament.

(ii) The Prime Minister may appoint members of his Cabinet from outside the state Parliament with considerations to the technical skills, experience and expertise which such a person so appointed may bring or have especially with reference to any Ministry which he may be in charge of.

5.14 (a) The Judicial power of each state shall be vested in the High Court in each state and such other inferior courts as the State Parliament may from time to time ordain and establish.

(b) Subject to Section 15 of this constitution, the High Courts in each state shall be a Superior Court of record and shall have unlimited original jurisdiction over civil and criminal matters such as jurisdiction and powers as may be conferred on it by this constitution or any other law

(c) (i) Subject to Section 6 (d) of this constitution, the judges of the High Court in each state shall be such number of judges as may be prescribed by the Sate Parliament.

A person shall not be qualified to be appointed a Judge of the High Court

unless;

  1. He is or has been a judge of a court having unlimited jurisdiction

in civil and criminal matters in Somalia or some parts of the commonwealth; or

2.He is an advocate of Somalia of not less than five (5) years standing.

3.A judge of a High Court shall vacate his office when he attains such age

as may be prescribed by the state parliament

(d) There shall be established in each state a branch of the judicial service commission to manage the administration of justice in the state.

5.15 (a) Subject to Section 14 and 30 of this constitution, there shall be establishment in each state, such numbers of Kadhi’s Courts as in State parliament may from time to time ordain and establish.

(b) The Kadhi’s Courts in each state shall have powers and jurisdiction over the personal Law of the citizens of the state and such other powers and jurisdiction as may be conferred on it by this constitution or any other law.

(c) Where both parties to a dispute before a Kadhi’s Court profess the Muslim faith, the Kadhi’s Court shall have power to determine matters regarding their personal law, especially matter on marriage, divorce, inheritance and succession.

(d) Subject to Section 6 (d) of this constitution, the Kadhis of the Kadhi’s Courts shall be such number of Kadhis as may be prescribed by or under an Act of Parliament or Enactment.

(e) A person shall not be qualified to be appointed to hold or act in the office of the Kadhi unless:

(i) He professes the Islamic faith; and

  1. He possesses such knowledge of the Islamic Law applicable to the

Muslims with respect to their Personal Law.

5.16 Each State will establish its police force headed by a commissioner of police appointed by the State President, for the enforcement of the state and federal laws and for keeping the peace and order in the state.

5.17 There shall be established in each state, a state capital which shall the administrative headquarters of the State and the seat of the State Government.

5.18 Without prejudice to the generality of this provision, each State Parliament and State Cabinet may establish committees for such general or special purposes as is deemed fit and expedient for the effective administration of the affairs of the State.

CHAPTER 4 – Traditional Monarchies (isimo)

5.19 Full faith, respect and recognition shall be given to the traditional monarchies (isimo) of the people of Somalia.

5.20 Each of the several states and the Federal Government shall, within the limits of the Law, ensure the enhancement of the ceremonial rights and duties and of the faith, respect and recognition accorded to the traditional monarchies of the Somali people.

5.21 Subject to this constitution and any other Law, the duties of the traditional monarchies (isimo) in the states shall be an advisory capacity to consult with and advice the state Government and its institutions on matters regarding mutual community affairs including customary Laws, traditions, practices and customs of their people.

5.22 Without prejudice to the generality of this provision, the ceremonial roles and advisory duties of the traditional Monarchies within each state will be limited to such matters as will enhance the peace and security of the people and the Land of the State, the maintenance of Law and order and good governance within the borders of the state and beyond if and when necessary.

CHAPTER 5

Federal Government

5.23 (a) There shall be established a collective Federal or a council of Federal Presidency which shall comprise of the presidents of the respective 5 States.

(b) The Council of Federal presidency, comprising of the 5 Heads of State of the respective states, will choose from among themselves, one person to be the executive Head of the Federal Government, each for one year on rotative base.

(c) This collective federal or council of presidency shall be in office for a period of five (5) years in each term and shall not be eligible to be so elected if he or she has served as such in the council of federal presidency for a consecutive period of two terms of five (10) years.

(d) Subject to the power of the Federal parliament to determine, the capital city of the federal Government will remain rotatively on yearly bases in the respective 5 State Capitals.

5.24 (a) The Federal President shall be Commander in chief of the Armed forces.

(b) (i) The Federal President, shall give to the Federal Parliament and the State Parliaments a state of the union address informing them on the overall state of affairs of the country, and recommend to their consideration such measures as he shall judge necessary and expedient

  1. The state of the union address shall be given by the Federal President to the joint members of the parliaments at such times and at such places as it is deemed necessary and practical but shall in any case be given not less than once in every calendar year.

(c) Subject to the provisions of this constitution and confirmation by a simple majority of the Federal Parliament and state Parliaments, the Federal President shall have power by and with the consent and advice of the Council of Federal Presidency, to: –

(i) Make treaties, provided two thirds of the State parliaments and the Federal Parliament concur;

(ii) Nominate and appoint Ambassadors and other National representatives to International organizations and Foreign Governments; and accredit and receive diplomatic representatives.

(iii) Appoint the Prime Ministers and secretaries of the Federal Cabinet.

(iv) Nominate and appoint the Chief Justice the judges of the Supreme Court and the Chief Kadhi.

(v) Nominate and appoint the Chairmen and members of the Electoral Commission and the Public Service Commission.

(vi) Nominate and appoint the Attorney General and Controller and Auditor General.

(vii) Prorogue and dissolve the Federal Parliament.

(vii) Exercise the executive/prerogative power of mercy with the advice of the judicial service committee.

  1. Do all such other matters that may be necessary for the effective administration of the Federal Government, including constituting and abolishing offices for the Republic of Somalia and terminating any such office.

5.25 (a) The legislative power of the Federal Republic shall be vested in the Federal Parliament which shall consist of the members of the Council of Federal Presidency and the members elected to the Federal Parliament from each District in Somalia.

(b) A person shall be qualified to be elected as a member of the Federal Parliament if, and shall not be so qualified unless, at the date of his nomination for election:

(i) He is a citizen of Somalia and has attained the age of 21 years; and

(ii) He is registered in some District as a voter in elect

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