JURIST Guest Columnist Stoyan Panov of the University of Birmingham Law School compares and contrasts executive powers under the transitional constitutions of South Sudan and Somalia …

The veto power of the executive over legislation creates certain political and legal tensions in newly independent states or states which are sometimes labelled as failed states. The following entry examines the role of the executive in the constitutional provisions of South Sudan and Somalia, and the veto power in terms of its effect and relation to the rule of law in both countries.

South Sudan

South Sudan became an independent state on July 9, 2011 after decades of prolonged armed conflicts with Khartoum. The Transitional Constitution of South Sudan (TCSS) [PDF] was adopted in 2011 and the document reflects the attempt to establish a state based on “justice, freedom, equality and dignity.” The TCSS as a transitory constitutional arrangement aims at creating a decentralized multi-party system. Illustrating the difficult emergence of South Sudan, one of the core political objectives of all governmental branches is to ‘initiate a comprehensive process of national reconciliation and … promote national harmony, unity and peaceful co-existence among the people of South Sudan’ according to Article 36(2)(b) of TCSS.

In order to understand the importance of the president’s veto power, it is necessary to look at the legislative process in South Sudan. The National legislature is bicameral, consisting of the National Legislative Assembly (NLA), and the Council of States, possessing the ability to “consider and pass amendments” to the Constitution and impeach the president according to Article 55 of the TCSS. The upper house, the Council of States, consists of 19 honourables and 20 representatives appointed by the president. The veto power of the president is established in Article 85(1) of the TCSS as “any bill approved by the National Legislature shall not become a law unless the president assents to it and signs it into law.” Once the president vetoes the bill, the bill is sent back to the National Legislature which considers the president’s observations.

The two houses can overcome the president’s veto on the bill by passing it by a two-thirds majority of all members of the two houses. However, to garner a two-third majority in the Council of States is quite difficult to fathom as approximately half of the Council representatives are appointed by the president. Such concentration of appointees and veto power within the hands of the executive tilts the balance of power between the various branches of government in executive’s favor. The legislative branch has the power to amend the constitution to limit the president’s powers but a threshold of two-thirds majority must be obtained in the both houses. Again, the power of the executive to control the Council of States through the appointment procedure of representatives is significant. The executive significantly tilts the check-and-balances control over the legislative branch in his favor.

The concentration of power within the president reflects his role in South Sudan as an executive. The president is the head of state and government as well as the Supreme Commander of all armed forces. The president appoints, and can dismiss the vice president without the approval of the NLA, according to Article 105(2). The discord on the powerful executive capabilities to appoint and dismiss high state officials such as state governors caused initial struggles as opposition parties to the ruling SPLM opposed such extended executive powers in the TCSS drafting process. The presidential powers to sack the government and the vice president also contributed to the mid-2013 conflict between President Kiir and the Vice President Riek Machar. The conflict also had ethnic undertones as Machar belongs to the second largest ethnic group, the Nuer. The clashes between forces loyal to Kiir and Machar resulted in hundreds of casualties.

A strong, accountable and transparent executive could be beneficial for building institutions in the newly emerging State. However, the constitutional arrangement as of the current moment does not allow for proper, democratic check-and-balances mechanisms, and the reformist push on part of the president primarily depends on the personal inclinations and political interests of the executive.

The judiciary may also exert some control over the presidential powers. The judiciary is perceived as the final arbiter in parliamentary or presidential democracies, especially when there is a concentration of powers within the executive. The president’s acts may be challenged by any person before the Supreme Court in accordance with Article 104 of the TCSS. The individual constitutional complaint serves as a powerful corrective mechanism with an independent and strong Supreme, Constitutional Court. Additionally, the president’s powers are limited as the National Assembly can impeach the executive by two-thirds majority on limited grounds of “high treason, gross violation of the Constitution or gross misconduct in relation to National affairs.” The impeachment is referred to the Supreme Court.

However, the independence of the judiciary, a crucial organ for maintaining the balance of power in any functioning type of democracy and for upholding the rule of law, is put in question as the president approves the budget of the whole branch in South Sudan. More significant and damaging for the independence of the judiciary is the fact that the president appoints the Chief Justice of the Supreme Court along with other high judicial positions according to Article 134 of the TCSS. In such manner, the president has immense power over the constitutional court which is supposed to provide checks on president’s acts. The politicization of the judiciary makes it unable or unwilling to provide checks and balances to the executive branch. The independence and accountability of the judiciary branch are significantly compromised.

Somalia

Somalia aspires to be a federal, representative parliamentary republic. The constitutional structure of Somalia is different from that of South Sudan as Somalia had been ravaged by an endemic, wide-spread internal conflict, ranging for more than 20 years. The current structure of government and the Provisional Constitution (PC) are a product of international efforts since 2008 to stabilize the state, involving transitional governments and Transitional Federal Charter. As the conflicts were heavily influenced by local loyalties in Somaliland and Puntland, it is not surprising that the current structure of Somali is a federal government with a strong emphasis on representation of federal member states (See Article 50 of PC) in comparison to the more centralized structure of the newly independent South Sudan.

Article 3(4) of the 2012 PC aims at ensuring separation of powers between the legislative, executive and judiciary branches. The Federal Parliament resembles the structure of the South Sudanese bi-cameral houses as there is a House of the People of the Federal Parliament, and the upper house, representing federal states and representatives, both electable by a direct and free ballot. The House of the People together with the upper house elects or dismisses the President of the Federal Republic in a joint session, which is significantly different from the South Sudan’s president direct election.

The legislative initiative is vested with the Council of Ministers, or at least ten members of the House of the People, or at least one representative of the upper house in light of Article 80 of the PC. Once the draft law is passed by both houses, the bill is sent to the president of the Federal Republic for his signature. The federal president has the power to “sign draft laws passed by the Federal Parliament in order to bring them into law” according to Article 90(f). It is not clear whether the president is obliged to sign the draft law, or has veto power. However, from the language of Article 90(f), the draft law becomes law when signed by the president, so if the president refuses to sign the draft law, then the bill cannot be interpreted to have legal power. It is ambiguous whether the legislative branch can overcome the situation of veto non-signature by the president as is the case in South Sudan. The TCSS seems clearer in the part of overcoming the executive veto.

The powers and functions of the president of Somalia significantly differ from the president of South Sudan. The Somali President Mohamud is the head of state, a primarily ceremonial figurehead, symbolizing national unity. As Somalia attempts to be a federal parliamentary democracy, such role for the president is not surprising. The executive power is concentrated in the Council of Ministers, which consists of the prime minister, deputy prime ministers, state ministers and their deputies.

Additionally, the president has the power to appoint the chairman of the Constitutional Court, and other lower courts according to Article 90(j). The judiciary branch seems more independent in comparison to South Sudan. The Judicial Service Commission, consisting of nine members, proposes the candidates for the highest court of the land, the Supreme Court, the House of the People approves the candidate and the president must appoint the selected judge to the Constitutional Court.

In conclusion, South Sudan may learn from the lessons of the internal conflicts of Somalia by adopting a more balanced constitution which provides for more powers to the directly electable lower house of the legislative organs and the transparent selection of high judicial officials. The current concentration of powers within the executive has already provoked internal conflicts in 2013. Somalia may adopt more precise language as to the powers of the federal president, and a more powerful judiciary to review the acts of government.

Stoyan Panov is a Visiting Lecturer in Law and Ph.D. candidate in Law at the Birmingham Law School of the University of Birmingham in Birmingham, UK. He holds an LLM degree in Public International Law from Leiden University and an MA from Georgetown University.

Suggested Citation: Stoyan Panov, The Tales of Two Transitional Constitutions, JURIST – Forum, September 16, 2014, http://jurist.org/forum/2014/09/stoyan-panov-transitional-constitutions.php.