December 8, 2019
December 8, 2019
For the first time in 50 years, national one person one vote national elections are expected to happen in Somalia. Three interrelated pieces of legislation guide the national elections namely the Provisional Constitution, the National Electoral Bill (NEB) and the Political Parties Law. Each of these three laws has hitherto been under review. The National Electoral Bill and the proposed amendments of the Political Parties Law are under parliamentary review while an independent and parliamentary committee is reviewing the Provisional Constitution.
While these laws would govern the elections in Somalia for the years to come, there are certain provisions contained in these legislations affecting in the 2020 elections that need harmonization. Several provisions and timelines in the legal framework are contradictory or simply unworkable in the current context. This can create challenges for interpretation and implementation.
There is a mismatch between timelines within the Political Parties Law and the National Electoral Bill. For instance, on party registration, article 4 (d) of the Political Parties Law codifies that a political party that has been temporarily registered may apply for full registration within five (5) months before the start of the election. Article 37 (d) of the Political Parties Law further states that the process of completing the registration of political parties will take place at least sixty (60) days before the elections.
These party registration timelines in the Political Parties Law contradict some provisions in the National Electoral Bill. Article 14 (3) of the NEB states that the NIEC must determine the election date at least ninety (90) days before voting takes place. Furthermore, article 25 (1) of the NEB stipulates that political parties must submit the list of candidates contesting for the parliamentary elections one hundred and twenty (120) working days before the election day.
A political party cannot follow the five-month timeline for formal registration unless the date of elections is announced with ample time (e.g., six months) before the polling date. Moreover, a political party may not be able to submit a candidate list (120 working days before polling) if the voter registration process is not yet finished, since all candidates have to be registered voters. Application for party registration starting only from 5 months before the election gives the NIEC very little time to carry out the necessary review process. Therefore, these timelines need to be reconciled.
Another area of contradictory provisions is the election campaign period. Article 13 (2) of the Political Parties Law stipulates that election campaigns – in which political parties present their programs and their members who take part in the election – shall stop seven (7) days before the start of the election. This article contradicts article 30 (2) of the National Electoral Bill, which states that the election campaign shall commence 45 days before the election day and end 48 hours before the election day.
These two articles suggest two different campaign silence periods: 7 days in the Political Parties Law and 48 hours in the NEB. This kind of contradiction could be avoided by harmonizing the two election campaign periods.
An effective election dispute mechanism is a cornerstone of a credible electoral process. It requires clear procedures and a timetable to minimize conflict between electoral stakeholders such as the NIEC, voters, political parties/candidates and their supporters. Electoral disputes should be dealt with in a transparent, effective and impartial manner.
The current legal framework lacks the required clarity to be effective. The National Electoral Bill is not very clear on how election dispute resolution is supposed to function and the Political Parties Law contains a provision with an ambiguous scope of application.
The proposed amendment of article 33 of the Political Parties Law stipulates that it is obligatory for the Court to speed up the process of decision-making on disputes brought before it. The provision demands that the Court should make its decisions within thirty (30) days effective from the date the case is tabled before it, and the decision by a ‘competent court’ can then be appealed against in accordance with the civil procedure code. However, the scope of application of article 33 of the Political Parties Law needs to be clarified: is it applicable only in cases of disputes among parties as outlined in article 32 of the Political Parties Law or does it apply to all kinds of election-related disputes? The proposed amendments to the Political Parties Law do not address the scope of its application.
On the other hand, article 111G of the Provisional Constitution, which clarifies the mandate of the National Independent Electoral Commission, includes in its mandate the settlement of electoral disputes. Notwithstanding the powers of the NIEC stated in the Constitution and article 14 of the law establishing the NIEC, article 7 of NEB states that the NIEC shall have the powers (I) to settle and decide on complaints against its sub-offices; and (II) to decide on electoral disputes and complaints forwarded by their sub-offices.
In addition, article 44 of the NEB deals with complaints at polling station level, supposedly providing the authority to decide about a complaint to the polling station administrator, whereas article 48 of the NEB establishes the requirement to submit ‘disputed’ ballot papers to the central tallying centre. Lacking here is clarity on what to do with the ‘disputed’ ballot paper at central level or how and when to establish the respective polling stations results. This provision does not reflect the normal electoral dispute process in which the election administration takes a decision at the polling station level, and if somebody thinks his/her rights are unjustifiedly affected by this decision, he/she should file a complaint.
Moreover, article 53 of the NEB states that electoral complaints must be handled by ‘a court with such jurisdiction’. It specifies that the courts may hear the complaints that relate to the right to vote, the right to participate in elections and the final election results, even though the title of the article only refers to the latter type of complaints. It adds that complaints related to election results must be brought at a court with such jurisdiction within 14 days from the day the NIEC announces the election results, and the court then decides on the election dispute case within 15 days. It does not establish any timeline for other types of complaints regarding the right to vote and the right to participate. The article also states that complaints against administrative decisions of the NIEC can be lodged at the Supreme Court.
All these provisions are confusing, subject for misinterpretation and sometimes contradictory. It is important that even the loser of an election is at least satisfied with the manner in which the electoral dispute resolution process is handled. This will enable him or her to accept the outcome of such a process as justified.
On official party registration, article 7 of the proposed amendments to the Political Parties Law (review of article 6) suggests that a temporarily registered political party shall be officially registered when its members are at least ten thousand (10,000) Somali citizens who are qualified eligible voters and are residents in at least nine of the 18 regions that existed before 1991. The National Independent Electoral Commission has the responsibility to ensure that members of the parties are qualified eligible voters.
Article 13 of the proposed amendments to the Political Parties Law (review of article 23) suggest to amend article 23 of the Political Parties Law, on the distribution of the ‘political parties fund’ – a fund that the federal government allocates and administered by the registrar of the political parties of NIEC alongside the monitoring of the office of the auditor general –, stipulates that a political party shall not be entitled to receive funding from the fund if: it does not secure the signature of ten thousand (10,000) Somali citizens who qualify to register as voters in accordance with the electoral regulations, who support the party and come from at least 9 regions out of the 18 regions that existed in 1991. The proposed amendment replaces the requirement to secure ten thousand (10,000) registered party members with ten thousand (10,000) Somali citizens.
On a positive note, the draft amendments do provide an operational improvement in article 6 (c) of the Political Parties Law requesting members of political parties to be eligible voters and not necessarily registered voters. This is because the latter would be very difficult for political parties due to the tight voter registration timeline in 2020. However, the high number of 10,000 members required remains a potential obstacle for political parties to register themselves. This is compounded by the fact that the provision requires 10,000 ‘members’ and not just ‘supporters’, or as stated in proposed amendments to Art 23, ‘Somali citizens’ (see above).
The laws regulating the national elections are under parliamentary review. To avoid contradictions and different interpretations of the laws, the parliament could consider the following recommendations:
On timelines: formal registration of parties should begin quickly in order to give them the chance to carry out various party activities in advance of elections in 2020. Article 4 (d) of the Political Parties Law should be rephrased by changing the word ‘within’ into ‘up until’, meaning temporarily registered parties may apply for full registration up until five months before the stated date of the election.
Further, article 25 (1) of NEB on a party’s submission of a candidate list (those contesting for the parliamentary elections) one hundred and twenty (120) working days before the election day should be deleted and instead incorporated into NIEC regulations and procedures.
On election campaigning: the contradiction between the NEB and the Political Parties Law on ‘campaign silence’ periods (48 hours and 7 days respectively) should be solved by deleting the provision in the Political Parties Law. The NEB provision should remain because 48 hours is a widely used timeframe for this silence period. A 48 hours silence period is used in, for instance, Afghanistan, Bosnia and Herzegovina, Georgia, Romania, South Africa, and Uruguay
On election dispute resolution: in order to avoid delaying the adoption of the NEB, it is sufficient to introduce a general clause describing the basic set-up of the electoral dispute resolution system to be further specified by NIEC regulations and procedures. Furthermore, it is foreseen in the current legal framework (NIEC law and NEB) that cases relating to the right to vote, the right to participate and the election results should be dealt with in courts. This is also an international standard.
The electoral dispute resolution process needs to be further defined and well drafted; it should clearly state the institutions involved and what the timelines for filing complaints are. This includes timelines on taking a decision about complaints involving NIEC structures dealing with disputes, and for cases involving election results, right to vote and right to stand for election, and timelines involving a court for filing appeals.
On full party registration: it will be challenging to implement article 7 of the current draft of the amendments to the Political Parties Law (Review of Article 6) without an election law currently in force. This is because there are no voter eligibility criteria defined in any other piece of legislation. Therefore, alternative methods to register parties that enable them to participate in the upcoming elections should be explored.
Election Series: Parliamentary and presidential elections are expected to happen in Somalia in late 2020 and early 2021. At Somali Public Agenda, we have begun a series of commentaries and briefs concerning these elections. Each commentary or brief analyses election-related themes. This commentary is the third paper of this series. SPA welcomes and very much appreciates comments, feedback and ideas relating to Somalia’s anticipated elections.