War torn Somalia does not have a formal constitution but it enjoys a constitutional tradition dating back to 1961, when the newly independent republic adopted its first constitution by referendum. Representatives of the Transitional National Government (TNG) and various political factions signed a transitional federal charter on September 15, 2003 in Nairobi, Kenya. The acceptance of the charter represented the completion of one of the goals of the TNG’s three-year mandate. Pending the charter’s implementation, the TNG, created by a peace conference in Djibouti in 2000, operates under an interim constitution that replaced the constitution of 1979, amended in 1990, which had provided for a presidential system under which the president served as both the head of state and the head of government.
Somalia has a constitutional tradition of a strong executive power and centralized government. Under the military regime of Siad Barre the president was also the leader of the only legal political party, the Somali Revolutionary Socialist Party (SRSP). The party's Central Committee nominated the president and, as head of government, he selected the members of the Council of Ministers, which he chaired. This constitution initially called for the president to be elected for a six-year, renewable term by a two-thirds majority vote of the legislature. Amendments enacted in 1984 provided for direct popular election of the president to a seven-year term. The constitution of 1979 authorized the president to conduct foreign affairs, declare war, invoke emergency powers, serve as commander in chief of the armed forces, and appoint one or more vice presidents, the president of the Supreme Court, up to six members of the national legislature, and the members of the Council of Ministers. Both the constitutions of 1961 and of 1979 also provided for a unicameral legislature, subject to election at least once every five years.
Until 1991, constitutional arrangements embraced an independent judiciary with the Supreme Court at the top of it as the court of final instance.
The provisional government in 1992 called for a new constitution to replace the 1979 document that had been only nominally effective since 1991. The provisional government created a Ministry of Constitutional Affairs to plan for a constitutional convention. In 1993, a preparatory commission presented a draft transitional national charter. These efforts were interrupted by the internal conflict in the country.
Separation of Executive, Legislative, and Judicial Powers
The interim constitution makes Somalia a parliamentary democracy. The 245-member Transitional People’s Assembly (TPA) founded at Arta elects the president, who appoints a prime minister. Like the Constitution of 1961, the interim constitution separates the head of government from the head of state. Its provisions were tested in late October 2001 when the TPA withdrew confidence in the prime minister. Prime Minister Ali Khalif Galaiyr resigned in accordance with the provisions of the interim constitution, and the president appointed Hassan Abshir Farah on November 12, 2001, to succeed him.
The 2003 transitional charter sets up a transitional federal parliament that differs little from the TPA in its composition and organization. It has a five-year term to set up a permanent political system and hold elections. It will consist of 275 members, appointed by clan leaders. Once the members convene, they will elect a president, who will appoint a prime minister.
The Transitional National Government (TNG) was unable to provide law and order even in the capital of Mogadishu. Some of the important warlords did not recognize it. In March 2001, the Chairman of the Somali National Alliance (SNA), Hussein Aideed, for instance, formed the Somali Restoration and Reconciliation Council (SRRC) in Ethiopia in March 2001. The SRRC voices much the same desires as the TNG to restore order in Somalia, but the two coalitions of clan leaders are bitter enemies. Other dominant clans in Somaliland and Puntland, respectively to the northwest and northeast of Somalia, have established separate governments not recognized by the TNG. The TNG, the SRRC, and the administration of Puntland are all parties to agreements on the new transitional federal government signed on September 15, 2003 and on January 29, 2004, giving hope that perhaps this new transitional government will wield more authority than the TNG. Subsequent to the announcement of the agreement, however, some factions complained of ambiguity in the new transitional charter, particularly in the method of selection for parliamentary ministers. Somaliland adopted its transitional constitution in a referendum conducted in May 2001.
The transitional federal charter signed in 2003 envisages a federal system, whereby regional administrations have broad autonomy underneath a skeletal federal government. Puntland and Somaliland, whose respective governments have generally provided a more stable environment than that of southern and central Somalia, are taken as the models for regional administration under the new charter, though Somaliland does not recognize the legitimacy of the charter.