Constitutional Law

Mr. Abdulkadir Mohamed Shaylilaah

 Chapter 1: Introduction

• What is Constitution Law?

1. Constitutional law: is a group of legal rules
which determine the structure of the state,
the system of government, and also the
rights and freedoms of individuals.
2. Constitutional law deals essentially with
the following subjects:
 Chapter 1: Introduction

a) The form of the country, i.e. kingdom or a

republican state.
b) The kind and form of the governmental
system, i.e. presidential or a parliamentary
government.
c) The boundaries of the territory of the country,
which is usually defined through treaties and
agreements with other countries.
 Chapter 1: Introduction

d) The public authorities and relationships

between them.
• There are three public authorities: the
executive, legislative and judicial authority.
e) The public liberties, such as the liberty of
opinion, the liberty of press, the right of
election, the right to form political parties, and
the right to have a private safe life.
 Chapter 1: Introduction

f) Rights of individuals, such as the right of

protection of the place of residence, the right
of the confidentiality of correspondences, the
right to freely move from a place to another,
the right to get a suitable job.
g) Duties of nationals which include performing
the military service, the duty of solidarity in
facing public disasters, payment of taxes, etc.
 Chapter 1: Introduction

• All other laws in the state are bound

to conform to the constitution of the
state in their form as well as in their
substance.
• This principle is known as the the
constitutionality of laws and
regulations.
Constitutional and Political System

• In countries in which the constitution has over-

riding legal force, there is often a Constitutional
Court which applies and interprets the text of
the constitution in disputed cases.
• Such a court is the Constitutional Court in
Somalia which has been mentioned in the
following Article of the Provisional Constitution
of Somalia.
Constitutional and Political System

• Article 109B: The Formation of the

Constitutional Court :
1)This Constitution establishes the
Constitutional Court, which is composed
of five (5) Judges including the Chief
Judge and the Deputy Chief Judge.
Constitutional and Political System

2) The Judicial Service Commission

shall nominate as judge of the
Constitutional Court only persons of
high integrity, with appropriate
qualifications in law and sharia, and
who are each highly competent in
Constitutional matters.
Constitutional and Political System

3) The Judicial Service Commission shall propose

to the House of the People the person they
want to be appointed as a Constitutional judge.
4) If the House of the People of the Federal
Parliament approves the name proposed in
accordance with Clause 3 of this Article, the
President of the Federal Republic shall appoint
that Person as a judge of the Constitutional
Court.
Constitutional and Political System

5) From amongst their members, the

Constitutional Court judges shall appoint the
Chief Judge and Deputy Chief Judge.
• Article 109C. The Powers of the
Constitutional Court:
1) The Constitutional Court shall have the
following exclusive powers:
Constitutional and Political System

a) Upon request from a member of the

Council of Ministers, a committee from
either one of the Houses, or ten
members of either House of the Federal
Parliament, to review draft legislation,
and determine its compatibility with the
Constitution;
Constitutional and Political System

b) To hear and decide cases as stipulated in

Article 86 concerning challenges to the
constitutionality of a law passed by the Federal
Parliament;
c) To hear and decide on cases that have been
submitted to the Constitutional court resulting
from matters stated in Article 109 (2) (c),
concerning matters of interpretation of the
Constitution not arising out of Court litigation;
Constitutional and Political System

d) To resolve any disputes between the Federal

Government and the Federal Member State
governments, or among the Federal Member
State governments;
e) To hear and decide cases arising out of
disputes between organs of the Federal
Government, concerning their respective
constitutional powers and duties;
Constitutional and Political System

f) To hear and decide cases arising in

terms of Article 92 concerning the
impeachment trials of the President.
2. The Constitutional Court shall determine
the date from which the decision to void
legislation shall come into effect.
Constitutional and Political System

a) In the case of legislation held to be

unconstitutional, except in terms of Paragraph (b)
of this Clause, taking into account the effect of the
decision on the date of invalidation on the
stakeholders and other social interests, the
constitutional court may declare the legislation
invalid from the time of enactment, or from the time
of the judgment, or, to enable appropriate action
pending invalidity, from a date specified in the
future.
Constitutional and Political System

b) In the case of criminal legislation, if the

effect of declaring the law invalid from
the enactment date would be of benefit
to a person who has been convicted
through this unconstitutional legislation,
the invalidity must be from the time of
enactment.
 Scope of Constitutional Law

4. Scope of Constitutional Law:

• According to one very wide definition,
constitutional law is that part of the Law which
relates to the system of government of the
country or it can also be defined as meaning
those laws which regulate the structure of the
principal organs of government and their
relationship to each other and to the citizen, and
determine their main function.
 Scope of Constitutional Law

• Constitutional law pervades its

scope around all areas of law in that
there is hardly any department of law
which does not, at one time or
another become of constitutional
importance.
 Traditional Constitutional Concept

• A basic idea, which seems to encompass and

include these concepts and has flooded
constitutional making in modern world is that of
“Constitutionalism” or “limited government”
• i.e. the idea of including in the constitution
certain rules and regulations geared towards
preventing abuse or the exercise of arbitrary
power-by government.
 Traditional Constitutional Concept

• Constitutionalism is a goal (i.e. a means

to an end), and it refers to the regularity
of political life within a state by means of
a constitution.
• As a concept; Constitutionalism means
limited government, i.e. a system of
restraint on both the ruler and the ruled.
 Traditional Constitutional Concept

• Constitutionalism asserts that there are

fundamental limits which must be
observed in the relationship between the
ruler and the ruled, when the power
relationship among the groups in
political society becomes regularized
under law and subject to well-defined
restraint, the constitutional government
exist.
 Constitutional law and
Administrative law
• Administrative law may be defined
as “the law which determines the
organization, powers and duties of
authorities”. Like constitutional law, it
deals with the exercise and control of
governmental power.
 Constitutional law and
Administrative law
• An artificial distinction may be made by
suggesting that Constitutional law is mainly
concerned with the structure of the primary
organs of government, whereas Administrative
law is concerned with the work of official
agencies in providing services and in regulating
the activities of citizens.
• Administrative law is directly affected by
constitutional structure of government.
 Political System

• The term of “political system” has been

defined by some different scholars and
include;
• David M. Wood. “Political system thus
becomes a set of interrelated variables
considered to be politically relevant and
treated as if they could be separated from
other variables conceived to be politically
relevant not immediately relevant to politics”.
 Political System

• For More:

• https://www.britannica.com/topic/
political-system
 Chapter 2: Sources of the
Constitutional Law
• The Sources of a Constitution
1. The past experiences of the country, for
instance, at the side of social economic,
political, historical, geographical and notable
historical documents.
2. The intellectual works of eminent and well-
known writers, jurists, historians, philosophers,
essayists, politicians, and statesmen
 Chapter 2: Sources of the
Constitutional Law
3. The case laws or judicial precedents, customs,
religion and community believes and way of life
of the people.
4. The rules and conventions guiding human
behaviour in the country, the constitutions of
other countries, the discussions and
deliberations of constitutional conferences or
Constituent Assemblies which may draft the
constitution of the given country.
 Chapter 2: Sources of the
Constitutional Law
5. The rules of international laws and so
forth are important sources to draw
from when writing a constitution for a
country.
 2.2: The Nature of the Constitution

• The constitution is considered the

supreme law of the country.
• No law is above the constitution; and all
ordinary laws get their validity and force
from the constitution; no law can be
inconsistent with the constitutional law.
• The nature of a constitution is determined;
 2.2: The Nature of the Constitution

A. A constitution is an expression of the will

of the people.
• The constitution may expressly spell out the
following types:
1. The desire of the various multi-ethnic people
or race, to live together as one people and
the legal basis on which they want to live
together in such given political entity.
 2.2: The Nature of the Constitution

2. The ideas and fundamental objectives and

directive principles of state policy they want to
lead their lives.
3. Public revenues and the control of the public
funds of the country.
4. The type and structure of government the
people want at the various levels of
government, their functions, powers and limits
thereto.
 2.2: The Nature of the Constitution

5. The establishment of armed forces and

their constitutional or professional roles.
6. The internal structure of the country,
political institutions and the functions
and powers they want the government
to exercise at the various levels of
government.
 2.2: The Nature of the Constitution

B. A constitution is a social contract

between the people and government.
• This mean the second nature of a
constitution, that it is a contract as follows.
1. A constitution is a Legal Contract between
the people and government containing
legal rights which have force of law and
are enforceable.
 2.2: The Nature of the Constitution

2. A constitution guarantees rights and

also attracts obligation or duties to
the;
–Individual and
–The government or public officers
and authorities on the other hand.
 2.2: The Nature of the Constitution

• Thus if the constitutional law is

considered the supreme law of the land,
then all laws of a particular country may
be classified into two broad categories;
1. Constitutional or Fundamental Law; and
2. Ordinary Law.
 Chapter 3: Classification of constitutions

• 3.3: Unwritten and Written Constitutions:

1. Unwritten Constitution is when it is difficult
to point at a single document as the
constitution of the country as is usually the
case for countries with written constitutions
in this world.
• Great Britain remains the most often referred
to nation with an unwritten constitution.
 Chapter 3: Classification of constitutions

• The Laws of the unwritten British

Constitution comprise of three kinds
of rules; statute, common law and
custom. In view of contemporary
development, it is necessary to
include international conventions.
 Chapter 3: Classification of constitutions

2. Written Constitution
• A Constitution is referred to as written, when
the most important constitutional rules are
specifically enacted.
• Where there is a written constitution, such
document is taken to be an organic
instrument which claims superiority over and
above any other document in the state.
 Chapter 3: Classification of constitutions

• The clearest characteristic of all written

constitutions is that it is possible to
point to one document or a combination
of documents, as the Constitution.
• A good example of a combination of
documents is when the country is a
federal.
 Chapter 3: Classification of constitutions

• The most fundamental attribute of

written constitution is that it cannot be
changed, amended or repealed like an
ordinary enactment. Thus it may have
the characteristic of rigidity.
• This leads us to the discussion of Rigid
and Flexible Constitutions.
 Chapter 3: Classification of constitutions

• 3.4: Flexible and Rigid Constitutions

• A rigid constitution is one which cannot
be amended, in the manner in which
ordinary laws are passed amended or
repealed.
• In every constitution, if a special
procedure or organ is needed for its
amendment, it is a rigid constitution.
 Chapter 3: Classification of constitutions

• Moreover, a rigid constitution is the

supreme law of the land and ordinary
legislature cannot pass a law which is
contrary to its spirit. The legislature
under a rigid constitution is not
sovereign. Its authority is limited by the
constitution.
 Chapter 3: Classification of constitutions

• Ordinary legislature of the country is not

competent to amend it in the ordinary legislative
procedure.
• Under a rigid constitution distinction is always
maintained between a constitutional law and an
ordinary law, since a constitutional law is
regarded as superior to an ordinary law, Rigid
Constitutional Law cannot be amended by the
ordinary legislature using normal legislative
procedure.
 Chapter 3: Classification of constitutions

• The Somali constitution is a

example of rigid constitution. It
cannot be amended in the manner
in which ordinary laws are passed,
amended or repealed. Look chapter
15 (Constitution of Somalia 2012).
 Chapter 3: Classification of constitutions

• 2. Flexible Constitution:
• A flexible constitution is one which can
be amended in an ordinary legislative
process by the ordinary legislature.
• A Constitutional law and an ordinary
law are treated alike or same in this
time.
 Chapter 3: Classification of constitutions

• All constitutional amendments can

be made by a simple majority of the
legislature. No distinction is made
between the constitution making
authority and the ordinary law
making authority.
 Chapter 3: Classification of constitutions

• No law is unconstitutional if passed

by the Parliament. It is a sovereign
body, at once enjoying the ordinary
law making powers and constitutional
law making powers. It is at once a
legislature and a constituent
assembly.
 Chapter 3: Classification of constitutions

• The constitution of England is a typical

example of a flexible constitution. The
British Parliament is competent to pass,
amend or repeal any constitutional law
in an ordinary legislative process as
both constitutional laws and ordinary
laws are treated alike.
 Chapter 3: Classification of constitutions

• Whether a written constitution is

flexible or rigid depends on how easy or
otherwise it is to amend and develop. It is
however a common saying that the main
fundamental attribute of a written
constitution is rigidity, that is, it cannot be
changed, amended or repealed like an
ordinary enactment.
 Chapter 3: Classification of constitutions

• This view tends to ignore the fact that there could

be a written but flexible constitution which allows
for easy amendment as the need may arise like a
constitution of Singapore is written but is entirely
flexible.
• It is perhaps better to describe each constitution
according to its wording rather than give a broad
classification of written and unwritten to determine
the rigidity or flexibility of a constitution.
 Chapter 3: Classification of constitutions

• Combining both Rigid and

Flexible in one Constitution:
• Some constitutions in this world
may combine both as rigid part and
flexible part, this is like Indian
constitution.
Chapter 4: Supremacy of the Constitution

• In every country in this world, during

civil rule – not military rule -, the
Constitution is the Supreme Law of the
land and the rule of law is the basis of
government actions and any law or
action that contravenes and breaks the
provisions of the constitution is void.
Chapter 4: Supremacy of the Constitution

• Supremacy of the constitution therefore

means that the constitution is
superior to every other law in the
land.
• The idea and notion here is that the
constitution is always the final authority
in the land as administered by the law
court.
Chapter 4: Supremacy of the Constitution

• Mr. Dicey; defined the supremacy of

the constitution as absolute supremacy
of the regular law as opposed to the
influence of arbitrary power.
• He stated clearly that supremacy of the
constitution emphasizes equality
before the law.
Chapter 4: Supremacy of the Constitution

• Constitutions of the Republic of

Somalia:
• All drafted and endorsed constitutions
of the Republic of Somalia from 1960 –
2012; including the current “Provisional
Constitution of the Federal Republic of
Somalia” are the supreme laws of
Somalia.
Chapter 4: Supremacy of the Constitution

• They provide the legal foundation for the

existence of the Republic and source of legal
authority. They set out the rights and duties of
its citizens, and define the structure of the
government.
• For example as all mentioned in the previous
endorsed constitutions in Somalia, the current
Provisional Constitution declares its Article 4
the supremacy of the constitution and says;
Chapter 4: Supremacy of the Constitution

1. After the Sharia, the Constitution of the Federal

Republic of Somalia is the supreme law of the
country. It binds the government and guides
policy initiatives and decisions in all sections of
government.
2. Any law or administrative action that is contrary
to the Constitution may be invalidated by the
Constitutional Court, which has the authority to
do so in accordance with this Constitution.
Chapter 4: Supremacy of the Constitution

• On the other hand, all the Constitutions of the

Republic of Somalia from 1960 to the current of
in 2012 provided for distribution of powers and
functions among the three branches of
governance (Legislative, Executive and
Judiciary) and clearly indicated that there
should be no interference among these
branches except to the extent to which the
constitution allows such power of interference.
Chapter 4: Supremacy of the Constitution

• 4.3: The Constitution of the Somali

Republic in 1960:
• This Constitution was drafted in Somalia
initially between “October 1957 and May
1959” by a Somalia Technical Committee
Members.
• A revised draft was prepared in “November
1959”.
Chapter 4: Supremacy of the Constitution

• Between “4 April and 9 May 1960”, both

drafts were examined in detail by a drafting
committee (of 50 Somali members) which
approved a new draft that was submitted to
the 90 members of Somalia Legislative
Assembly (augmented and increased with
additional 20 members) and was finally
adopted by them on “21 June 1960”.
Chapter 4: Supremacy of the Constitution

• It was “promulgated by the Provisional President of

the Republic and came into force on “1 July 1960”.
• Referendum on the “1960 Constitution on 20 June
1961”. The majority of the Northern Regions and
districts (4 out of 6) where the majority of the
population lived rejected the Constitution with “a
No vote” ranging from “72% to 60%” whilst in
southern regions, with the exception of Hiran, all
the other five regions returned “Yes votes” ranging
from “98% to 88%”.
Chapter 4: Supremacy of the Constitution

• There was obvious ballot rigging as

illustrated by the district of “Wala-Weyn”
which returned a near 100% “Yes vote
of 68,994” - a figure which exceeded by
over 50% the total number of persons
who voted at the capital city of
Mogadishu which was recorded as
“42,583”.
Chapter 4: Supremacy of the Constitution

• From then onwards, the Northern Regions

people referred to the Southern people as
“Wala-Weyn”!
• The 1960 constitution was the first constitution
of the land after the independence, established
unicameral Parliament, the National
Assembly, which comprised “123 members”
elected for a 5-year term, plus 1 life deputy
participating in the capacity of former President
of the Republic.
Chapter 4: Supremacy of the Constitution

• 4.4: Military Rule & Repealing of 1960

Constitution in Somalia:
• In order to repeal and cancel the functionality of the
1960 constitution of Somali the “Supreme
Revolutionary Council” “SRC” led by Mohamed
Siad Barre abrogated the constitution of 1960 and
established the SRC‟s domestic program, known
as “the First Charter of the Revolution, which
appeared in 1969, along with Law Number 1”.
Chapter 4: Supremacy of the Constitution

• Law Number 1 assigned to the SRC all

functions previously performed by the
previous civil president, the National
Assembly “parliament” and the Council
of Ministers, as well as many duties of
the courts.
Chapter 4: Supremacy of the Constitution

• The role of the twenty-five-member military regime

was that of an executive committee that made
decisions and had responsibility to formulate and
execute policy.
• A subordinate fourteen-man secretariat was
established known as the Council of the
Secretaries of State (CSS), who functioned as a
cabinet and was responsible for day-to-day
government operation, although it lacked political
power.
Chapter 4: Supremacy of the Constitution

• Although the SRC monopolized and

controlled executive and legislative
authority, Mohamed Siad Barre filled
himself a number of executive posts
including; titular head of state, chairman of
the CSS (and thereby head of
government), commander in chief of the
armed forces, and president of the SRC.
Chapter 4: Supremacy of the Constitution

• Military and police officers, including some

SRC members, headed government
agencies and public institutions to
supervise economic development,
financial management, trade,
communications, and public utilities and
also the Military officers replaced civilian
district and regional officials.
Chapter 4: Supremacy of the Constitution

• The legal system functioned after the coup,

subject to modification. In 1970 special
tribunals, the National Security Courts (NSC),
were set up as the judicial arm of the SRC.
• Using a military attorney as prosecutor, the
courts operated outside the ordinary legal
system as watchdogs against activities
considered to be counterrevolutionary.
Chapter 4: Supremacy of the Constitution

• The new regime subsequently

extended the death penalty and
prison sentences to individual
offenders, formally eliminating
collective responsibility through the
payment of diya or blood money.
Chapter 4: Supremacy of the Constitution

• The SRC also repaired local government,

breaking up the old regions into smaller
units as part of a long-range
decentralization program intended to
destroy the influence of the traditional clan
assemblies and, in the government's
words, to bring government “closer to the
people”.
Chapter 4: Supremacy of the Constitution

• Other institutional innovations included

the organization (under Soviet
direction) of the National Security
Service (NSS), directed initially at
hesitant the flow of professionals and
dissidents out of the country and at
counteracting attempts to settle
disputes among the clans by traditional
means.
Chapter 4: Supremacy of the Constitution

• The newly formed Ministry of Information

and National Guidance set up local
political education agencies to carry the
government's message to the people.
• The SRC took its toughest political stance
in the campaign to break down the unity
and solidarity of the lineage groups.
Chapter 4: Supremacy of the Constitution

• Traditional headmen, whom the

democratic government had paid a
stipend, were replaced by reliable
local dignitaries known as
"peacekeepers" (nabaddoono),
appointed by Mogadishu to
represent government interests,
Chapter 4: Supremacy of the Constitution

• 4.5: The Constitution of the Somali

Republic in 1979:
• During the military rule in Somalia, a constitutional
referendum was held on 25th August 1979. The
new constitution replaced the one approved in
1961 through public referendum, and the military
introduced a one-party state with a presidential
system of government. It was approved by 99.78%
of voters.
Chapter 4: Supremacy of the Constitution

• The new constitution of 1979, registered

an unopposed list of “171 candidates”,
who were elected to the People's
Assembly as parliament, which the
following month, elected Mohamed Siad
Barre unanimously to a new term of office
- unopposed elections were again held on
31 December 1984.
Chapter 4: Supremacy of the Constitution

• The Constitution of 1979

provided for a presidential
system under which the
president served as both head
of state and head of
government.
Chapter 4: Supremacy of the Constitution

• As head of government, the president

selected the members of the Council of
Ministers, which he chaired.
• The Constitution initially called for the
president to be elected to a six-year,
renewable term of office by the
legislature.
Chapter 4: Supremacy of the Constitution

• 4.6: Transitional National Charter in 2000:

• The Transitional National Charter, adopted in
2000 in Djibouti, was the first attempt to re-
establish governmental functions by means of a
constitution.
• The Transitional National Charter expired in
2003, and was replaced by the Transitional
Federal Charter in 2004 which was re-adopted
in Kenya.
Chapter 4: Supremacy of the Constitution

• This remained the transitional constitution

governing the Transitional Federal
Government of Somalia and its institutions
until 2012, when the National Constituent
Assembly consisted of (825) members is
empowered to provisionally adopt a new
constitution to replace the Transitional
Federal Charter.
Chapter 4: Supremacy of the Constitution

• This constitution would then

become the permanent
constitution for Somalia
pending adoption by national
referendum.
Chapter 4: Supremacy of the Constitution

• 4.7: Provisional Constitution of Somalia

2012:
• On 1st August 2012 Somalia adopted a
Provisional Constitution through temporary
endorsement of the National Constituent
Assembly consisted of (825) members marking
the official end of transition and the
establishment of the new Federal Government
of Somalia.
Chapter 4: Supremacy of the Constitution

• New Somalia’s constitutional process dates

back to the establishment of the Transitional
Federal Charter (TFC) in 2000 - 2004 in
Djibouti and Kenya respectively, and have
been a keystone of the September 2011
Roadmap to chart Somalia’s path out of
transition and towards permanent and
representative government.
Chapter 4: Supremacy of the Constitution

• The UN Special Representative of the

Secretary-General (UNSRSG), In that time
Mr. Augustine Mahiga, described the
Roadmap as “the most inclusive process of
all the efforts to rebuild Somalia’s
governance”, with the UN’s role merely to
“facilitate a Somali-led process”.
Chapter 4: Supremacy of the Constitution

• The UNSRSG signed the Roadmap along

with six Somali “Principal” signatories
including; the President of the Transitional
Federal Government (TFG), the Prime
Minister of the TFG, and the Speaker of the
Transitional Federal Parliament, the
President of Puntland, the President of
Galmudug, and the Chair of the Islamist
group Ahlu Sunna Wal Jama’a.
Chapter 4: Supremacy of the Constitution

• The constitution has a peace-building

function in defining an acceptable social
contract between state and society.
• The constitutional process:
• The current Provisional Constitution tries
to pave the way for a Somali nation that
pledges both Islamic and democratic
values.
Chapter 4: Supremacy of the Constitution

• It establishes Islam as the state religion and

requires all laws to be compliant with Sharia as
clearly indicated in Articles two and three of the
constitution.
• It sets up a federal system based on two levels
of government – the Federal Government level
and the Federal Member State levels,
comprising the local governments and the
Federal Member State governments.
Chapter 4: Supremacy of the Constitution

• A permanent constitution is to be adopted by public

referendum before the end of the first term of the
Somali Federal Parliament in 2016 – but not yet
endorsed -.
• The specific allocation of powers and
responsibilities are subject to further negotiations –
except for foreign affairs, national defence,
citizenship and immigration, and monetary policy,
which fall within the remit of the Federal
Government.
Chapter 4: Supremacy of the Constitution

• the creation of Federal Member

States was highly controversial and
so the Provisional Constitution does
not create Federal Member States,
but entrusts this responsibility to
parliament to decide on their
number and demarcation.
Chapter 4: Supremacy of the Constitution

• Amendments to the Provisional

Constitution are to be prepared by
an Independent Provisional
Constitution Review and
Implementation Committee – a 5
strong team of independent legal
experts.
Chapter 4: Supremacy of the Constitution

• This will operate under the oversight of a

parliamentary Provisional Constitution
Review and Implementation Oversight
Committee, comprising members of both
houses of the Federal Parliament, and one
additional member per existing federal
member state, as clearly mentioned in
Articles 133 and 134 of the constitution.
Chapter 4: Supremacy of the Constitution

• The constitutional process was built on three

primary objectives which are;
1. To unite the republic;
2. To lend legitimacy to future political
leaderships; and
3. To introduce institutions those are
representative, responsive and accountable
to the people.
Chapter 4: Supremacy of the Constitution

• The new constitution was born out of a

near decade-long review process since
the founding of the TFG in 2004, and was
a stipulation of the TFC. The TFC further
provided for an Independent Federal
Constitution Commission (IFCC),
established in 2006 and mandated to draft
a federal constitution.
Chapter 4: Supremacy of the Constitution

• In 2008 a new political agreement was

reached between the TFG and the
Alliance for the Re-Liberation of
Somalia (ARS) – an Islamist
association established in 2007 out of
the deposed Islamic Courts Union (ICU)
and other Somali leaders opposed to
the TFG.
Chapter 4: Supremacy of the Constitution

• After the election of former ICU Chair Sheikh Sharif

as TFG President in 2009, the size of the IFCC
was doubled in 2010 with the addition of fifteen
new members in order to reflect and accommodate
ARS interests. A Committee of Experts (COE) was
subsequently set up in 2011 to support the work of
the IFCC, comprising nine members and led by
Legal expert Mohamed Osman Jawari – later
appointed as the speaker of the parliament -.
Chapter 4: Supremacy of the Constitution

• The COE was established in part to try

to offset growing misgivings over the
competence and independence of the
IFCC, which many Somalis saw as
increasingly deviating from the TFC
mandate and as being politically
motivated team in general prospective?
Chapter 4: Supremacy of the Constitution

• The IFCC agreed “a Consultative Draft

Constitution in July 2010” and various
sectors of society were consulted on it
over subsequent months. The COE and
the IFCC then revised “the 2010
Consultative Draft Constitution” and
produced a “Harmonised Draft
Constitution in early 2012”,
Chapter 4: Supremacy of the Constitution

• following which, at a meeting in Addis

Ababa in April 2012, the Principal
Roadmap Signatories (i.e. without the
UNSRSG) established a Technical
Review Committee to assess and
amend the Harmonised Draft.
Chapter 4: Supremacy of the Constitution

• Two consultative conferences were held in

Garowe, Puntland, in December 2011 and
February 2012 respectively, involving the TFG
and other Somali stakeholders. These agreed
the “Garowe Principles”, which developed
language on the content of the constitution, for
example relating to federalism, and also
outlined plans for a National Constituent
Assembly (NCA) to finalise the Provisional
Constitution.
Chapter 4: Supremacy of the Constitution

• The Garowe Principles agreed

that the “NCA” would comprise
“825 delegates” selected
according the 4.5 formula of
fixed proportional representation
of Somali clans.
Chapter 4: Supremacy of the Constitution

• The formula allocates political

representation (for example, in relation
to distribution of parliamentary seats)
equally to the four major Somali clan -
families, (Darood, Digil and Mirifle, Dir
and Hawiye), with the remaining 0.5
allotted to “minority clans”
Chapter 4: Supremacy of the Constitution

• At least 30 per cent would be women.

Women were to be nominated for NCA
membership first to ensure the
minimum quota would be reached,
while nominations that failed to return
30 per cent women would be rejected.
Chapter 4: Supremacy of the Constitution

• Nominations for NCA membership were

made by the Principal Roadmap
Signatories, assisted by traditional
leaders and civil society, and overseen
by “a 135 members” of Technical
Selection Committee to evaluate
candidates.
Chapter 4: Supremacy of the Constitution

• Nominations were verified by an “Interim

Independent Electoral Commission”
comprising 15 voting members - again based
on the 4.5 formula - who had to be “patriotic,
honest, of good standing in Somali society”.
Finally, the 825 NCA members met for eight
days in July 2012 and finally adopted the
Provisional Constitution on 1 August 2012.
 Chapter 5: Separation of powers

• 5.1: Introduction:
• Separation of powers is one of the devices used
by the human being rule and order systems of
government to protect the rule of law and
prevent exercise of arbitrary power by the
sovereign.
• The concept flowed and streamed from the
writings of John Locke on the situation in
England in the 17th century.
 Chapter 5: Separation of powers

• He argued that it was fool-hardly to give

lawmakers the power to execute law made by
them because, in the process, they can
exempt themselves from the observance and
adherence of the law.
• To prevent arbitrariness he championed
creation of a constitutionally limited
government and three fold division of
government into being like;
 Chapter 5: Separation of powers

a. Legislative power for creation of rules

b. Executive power by which laws are enforced
and
c. Federative powers which concern making of
war/peace and external relations.
• He did not advocate separation between
legislative and federative powers.
 Chapter 5: Separation of powers

• The modern form of the concept is

however due to the writing of Mr.
Montesquieu which he argued three
simple different above as;
executive, legislature and judiciary
powers.
 Chapter 5: Separation of powers

• Definition of the Concept Called Separation of

Powers:
• “is the constitutional doctrine of the division of
powers of government into the three branches
of legislative, executive and judicial powers,
each to be exercised by a different group of
persons as a means of checks and balances in
the government structure itself, and to protect
the people against tyranny”.
 Chapter 5: Separation of powers

• The concept of separation of powers may mean

at least three different things as;
a. That the same person should not form part of
more than one of the three organs.
b. That one organ of government should not control
or interfere with the work of another. For example
the judiciary should be independent of the
Executive and the Legislative by the side of
performing its duties.
 Chapter 5: Separation of powers

c. That one organ of government

should not exercise the function
of another. E.g. the Legislature
should not carry out judicial
functions.
 Chapter 5: Separation of powers

• The doctrine of separation of powers as

understood today came largely from the
work of the French jurist, Mr. Baron De
Montesquieu, in his book “The Spirit of Law”
who studied and expanded the work of John
Locke.
• He was concerned with preservation of the
political liberty of the citizen.
 Chapter 5: Separation of powers

• According to Montesquieu; “political liberty

is to be found only when there is no abuse
of power. Experience shows that
everyman invested with power will abuse
it by carrying it as far as it can go. To
prevent this abuse, it is necessary from
the nature of things that one power should
be a check on another. ……
 Chapter 5: Separation of powers

• When the Legislative, Executive and judicial

powers are united in the same person or
body, there can be no liberty, again there is
no liberty if the judiciary powers is not
separated from the legislative and executive,
there would be an end of everything if the
same person or body, whether of the nobles
or of the people, were to exercise all there
powers”.
 Chapter 5: Separation of powers

• Therefore concentration of powers

in the same person or body would
no doubt lead to tyranny and
dictatorship because power
corrupts and absolute power
corrupts absolutely.
 Chapter 5: Separation of powers

• According to Mr. Abiola Ojo, “a complete

separation of powers is neither practicable
nor desirable for effective government.
What the doctrine can be taken to mean is
the prevention of tyranny by the
conferment of two much power on anyone
person or body and the check of one
power by another”.
 Chapter 5: Separation of powers

• 5.2: Separation of Power in Constitutional Law:

• Separation of power in the constitutional law is
based, the political doctrine of constitutional law
under which the three branches of government
are kept separate to prevent abuse of power.
• Also known as the system of checks and
balances, each branch is given certain powers
so as to check and balance the other branches.
 Chapter 5: Separation of powers

• For example, even in the UK – which

promulgates that its constitution is unwritten
– structurally in political system is divided in
to three branches which are;
1. The executive that comprises the Crown and
the Government, including the Prime
Minister and Cabinet ministers. The
executive formulates and implements policy.
 Chapter 5: Separation of powers

2. The legislature, Parliament, that also

comprises the House of Commons and the
House of Lords.
3. The judiciary that also comprises the judges in
the courts of law, those who hold judicial office
in tribunals and the lay magistrates who staff
the magistrates’ courts. Senior judicial
appointments are made and appointed by the
Crown.
 Chapter 5: Separation of powers

• 1. Separation of Executive and

Legislature Powers:
• In the UK, the executive and legislature
powers are closely tangled. The Prime
Minister and a majority of his/her ministers
are Members of Parliament and sit in the
House of Commons. The executive is
therefore present at the heart of Parliament.
 Chapter 5: Separation of powers

• By contrast to that, in the USA and other

similar countries in this world, the President
cannot be a member of the legislature, and
is elected separately from congressional
elections. This may result in the President
being a member of a different political party
from the majority of members of
Parliament.
 Chapter 5: Separation of powers

• The UK's integration of executive and

legislature is said to provide stability and
efficiency in the operation of government.
• For example, the Prime Minister is usually both
head of the executive branch and leader of the
majority party in the legislature, which gives the
executive branch much more freedom of action
than a president usually enjoys in a presidential
system of government.
 Chapter 5: Separation of powers

• In UK, about 20% of MPs are

sometimes on the “payroll vote” as
ministers or their parliamentary private
secretaries and are obliged to vote with
the Government or resign their position.
• In this way, in the UK legislature and
executive are far from separate powers.
 Chapter 5: Separation of powers

• 2. Separation of Legislature and Judiciary

Powers:
• In the UK, judges are prohibited from standing for
election to Parliament under the House of
Commons. Judges are expected to interpret
legislation in line with the intention of Parliament
and are also responsible for the development of
the common law rule which mostly based on
(judge-made-laws).
 Chapter 5: Separation of powers

• Judges in the higher courts have life tenure

and term, which protects their
independence and in UK, a resolution of
both Houses, is needed to remove a High
Court judge from the office, while judges at
the lower levels can only be removed after
disciplinary proceedings from the Judiciary
Service Commission.
 Chapter 5: Separation of powers

• The most objective of judicial procedure is

that the citizen must be able to challenge the
legitimacy of executive action before an
independent judiciary.
• In UK, constitutionally, judges are
subordinate to Parliament and may not
challenge the validity of Acts of the
Parliament.
 Chapter 5: Separation of powers

• Parliamentary Privilege:
• Almost all constitutions in this world
unanimously set out the principle of privilege of
Parliament, like; freedom of speech and debate.
It is “an absolute privilege and is of the highest
constitutional importance”.
• Any attempt by the courts to contravene or
break the Parliamentary privilege would be
unconstitutional.
 Chapter 5: Separation of powers

• Sub-judice Rule:
• The sub-judice rule is intended to defend the
rule of law and citizens’ right to fair trial.
Where an issue is awaiting determination by
the courts, that issue should not be
discussed in the Parliament in any motion,
debate or question in case that should affect
decisions in court.
 Chapter 5: Separation of powers

3. Separation of Executive and Judiciary Powers:

• The third element of separation of powers is
between the executive and the judiciary powers.
• The judicial function with regard to the executive is
to ensure that any delegated legislation is
consistent with the scope of power granted by the
constitution and parliament and to ensure the
legality of government action and the actions of
other public bodies.
 Chapter 5: Separation of powers

• 5.3: Provissional Constitution of Somalia &

Separation of Power:
• Currently Provissional Constitution of Somalia
“Articles 54 to 144” clearly designates and explains
devolution and separation of government powers in
to three branches namely Parliament, Executive
led by the President and Judiciary institutions from
Supreme Court of the country to the lowest level of
tribunal legal employments including Constitutional
Court of the land.
 Chapter 5: Separation of powers

• For example; “Articles 55 to 86” plainly

interpreted responsibilities, functions, powers,
membership criteria, term of office, the immunity
of the members of the both house of the
parliament, their sessions, and categories of the
two houses of the Federal Parliament of Somalia
namely – the House of the people and the Upper
house – including the legislative powers and
other special powers of each house.
 Chapter 5: Separation of powers

• As same as mentioned above, “Articles

87 to 104” normally explains
constitutional powers, responsibilities,
conditions, criteria and eligibility, terms
of offices, procedural and way of
elections of the executive branch of the
Federal Government of Somalia.
 Chapter 5: Separation of powers

• For example, “Article 90” which is about

“The Responsibilities and Powers of the
President of the Federal Republic of
Somalia” says; the powers and
responsibilities of the President of the
Federal Republic of Somalia are to;
 Chapter 5: Separation of powers

a. Declare a state of emergency and war in

accordance with the law;
b. Serve as Commander in Chief of the Armed
Forces;
c. Appoint and dismiss the Commanders of the
Forces at the Federal Government Level on
the recommendation by the Council of
Ministers;
 Chapter 5: Separation of powers

d. Appoint the Prime Minister, and to dissolve

the Federal Government if it does not get the
required vote of confidence from the House
of the People of the Federal Parliament by a
simple majority (50% +1);
e. Dismiss ministers, state ministers and
deputy ministers on the recommendation of
the Prime Minister;
 Chapter 5: Separation of powers

f. Sign draft laws passed by the Federal

Parliament in order to bring them into law;
g. Open the House of the People of the Federal
Parliament;
h. Hold an annual session with the House of
the People of the Federal Parliament;
i. Address the House of the People of the
Federal Parliament at any other time;
 Chapter 5: Separation of powers

j. Appoint the chairman of the Constitutional

Court, the High Court, and other judges at the
Federal Government Level in accordance with
the recommendation of the Judicial Service
Commission;
k. Appoint senior Federal Government officials
and the heads of the Federal Government
Institutions on the recommendation of the
Council of Ministers;
 Chapter 5: Separation of powers

j. Appoint ambassadors and high commissions on

the recommendation of the Council of Ministers;
k. Receive foreign diplomats and consuls;
l. Confer State Honors on the recommendation of
the Council of Ministers;
m. Dissolve the House of the People of the Federal
Parliament when its term expires, thereby
prompting new elections;
 Chapter 5: Separation of powers

p. Pardon offenders and commute

sentences on the recommendation of
the Judicial Service Commission;
q. Sign international treaties proposed by
the Council of Ministers and approved
by the House of the People of the
Federal Parliament.
 Chapter 5: Separation of powers

• While also “Article 100” which is about “the

responsibilities and Powers of the Prime
Minister and says; the responsibilities of the
Prime Minister are to:
a. Be the Head of the Federal Government;
b. Appoint and dismiss members of the
Council of Ministers;
 Chapter 5: Separation of powers

c. Present the Council of Ministers and

government program before the House of
the People of the Federal Parliament to seek
their endorsement;
d. Carry out any other function conferred upon
him or her by the Constitution or by any
other law that complies with the Constitution
and its underlying values.
 Chapter 5: Separation of powers

• And also article “99” states Responsibilities

of the Council of Ministers
• The Council of Ministers has the powers to:
a. Formulate the overall government policy and
implement it;
b. Approve and implement administrative
regulations, in accordance with the law;
 Chapter 5: Separation of powers

c. Prepare draft laws, and table them before

the House of the People of the Federal
Parliament;
d. Prepare the annual budget and finalise the
accounts;
e. Set the national development plan;
f. Implement laws, ensure national security,
and protect state interests;
 Chapter 5: Separation of powers

g. Appoint and dismiss senior public

officials;
h. Propose the appointment or dismissal of
ambassadors, consuls and diplomats;
and
i. Exercise any other power conferred
upon it by the Constitution or by other
laws.
 Chapter 5: Separation of powers

• At the end, “Articles 105 to 114” separately

elaborates general approaches of “Judicial
Authority including; powers, responsibilities,
conditions, terms of offices, procedural
nominations of their members, constitutional
commissions of this branch - like Judicial Service
Commission - and that the judiciary is independent
from the legislative and executive branches of
government whilst fulfilling its judicial functions.
 Chapter 5: Separation of powers

• For example “Article 108” which is about

“National Court Structures” says; the
national court structure shall be of three
levels, which are:
a. The Constitutional Court;
b. The Federal Government level courts;
c. The Federal Member State level courts.
 Chapter 5: Separation of powers

• The highest court at the Federal

Government level shall be the
Federal High Court, whilst the
highest court at the Federal
Member State level shall be the
Federal Member State High Court.
 Chapter 6: The Rule of Law

• Attempts at Defining the Rule of Law:

• The “Rule of Law” means that law rules or
reigns and controls.
• This assumes a situation where everything is
done in accordance with law thereby
excluding any form of arbitrariness.
• The concept of the rule of law is of great
antiquity.
 Chapter 6: The Rule of Law

• Aristotle argued that “government by law

was superior to government by men”.
• By this he meant that where the rule of
law prevailed, government will be better
organized unlike rule by the whims of the
leader which will likely cause chaos and
disorder.
 Chapter 6: The Rule of Law

• the basic meaning of what the

concept of the rule of law stands for is
that the law of any given state is
supreme over and above all the
individuals, be it the kings, Marshals,
dictators and its subjects.
 Chapter 6: The Rule of Law

• Elements of the Rule of Law:

1. Laws must exist and those laws should be
obeyed by all, including government officials.
2. Laws must be published.
3. Laws must be prospective in nature so that
the effect of the law may only take place
after the law has been passed (published).
 Chapter 6: The Rule of Law

4. Laws should be written with reasonable

clarity to avoid unfair enforcement.
5. Laws must avoid contradictions.
6. Laws must not command the impossible.
7. Laws must stay constant through time to
allow the formalization of rules.
8. Official action should be consistent with the
declared rule.
 Chapter 6: The Rule of Law

• these eight elements may seem clear.

But they are actually difficult to
implement in the real world because
governments are often compelled to
prioritize one goal over another to
resolve conflicts in a way that reflects
society’s political choices.
 Chapter 6: The Rule of Law

• Additionally, instead of only applying

prospectively, some laws are meant
to apply retroactively, or to past
conduct, because they were passed
with the specific intent of correcting
the conduct in question.
 Chapter 6: The Rule of Law

• The rule of law, however, extends

beyond mere regulations and is
also shaped by the so-called
“institutional constraints” on
government implied in these
elements.
 Chapter 6: The Rule of Law

• One such institutional constraint is the

existence of an independent judiciary; another
is developing ways of promoting “transparent
governance”.
• Informal constraints, such as local culture that
may encourage citizens to organize their
behaviour around the law, also help constrain
the government, promote liberty and, therefore,
define the rule of law.
 Chapter 6: The Rule of Law

• the rule of law may be most concretely

defined as a theory of governance
relying upon a series of legal and social
constraints designed to encourage
order and to prevent arbitrary and
unreasonable exercise of government
power.
 Chapter 6: The Rule of Law

• The Historical Evolution of Rule of

Law Concept:
• The history of the Rule of Law dates
back to the theories of early
philosophers. As stated by Aristotle,
“The Rule of Law is preferable to that of
any individual”.
 Chapter 6: The Rule of Law

• Mr. Bracton, in the 13th century

was of the opinion that, “the
King himself ought not to be
subject to man but subject to
God and the law because the
law makes the king”.
 ‫‪Chapter 6: The Rule of Law‬‬

‫• ‪( .....‬أتشف‪Q‬ع ف‪Q‬ي ح‪Q‬د م‪Q‬ن حدود هللا‪Q‬؟)‪ ،‬ث‪Q‬م قام‬

‫فاختط‪Q‬ب ث‪Q‬م قال‪( :‬إنم‪Q‬ا أهل‪Q‬ك م‪Q‬ن كان قبلك‪Q‬م‬
‫أنه‪QQ‬م كانوا إذا س‪QQ‬رق فيه‪QQ‬م الشري‪QQ‬ف تركوه‪،‬‬
‫وإذا س‪Q‬رق فيه‪Q‬م الضعي‪Q‬ف أقاموا علي‪Q‬ه الح‪Q‬د‪،‬‬
‫وأي‪Q‬م هللا‪ ،Q‬ل‪Q‬و أ‪Q‬ن فاطم‪Q‬ة بن‪Q‬ت محم‪Q‬د س‪Q‬رقت‬
‫لقطع ُ‬
‫‪Q‬ت يداها‪( .‬متفق عليه)‬
 Chapter 6: The Rule of Law

• 6.4: Supremacy of the Law in General:

• Prof. Dicey said “A man with us (the
English Nation) may be punished for a
breach of the law but he can be
punished for nothing else”.
• this formulation can be subjected to at
least two interpretations.
 Chapter 6: The Rule of Law

• Firstly, it may mean that power, no matter

from whom it came, must be exercised in
accordance with the existing laws of the land.
• The second possible interpretation is that the
citizen could only be punished for a breach of
the law established in the constitutional
manner before a constitutionally constituted
court of the land.
 Chapter 6: The Rule of Law

• In the general sense, the first

formulation means that the Rule
of Law presupposes the
absence of arbitrary or
changeable law.
 Chapter 6: The Rule of Law

• 6.5: Equality before the Law:

• This statement is to the effect that every
person no matter his status is subject to the
laws of the land.
• In this sense, it means equality before the
law or equal subjection of all classes of
persons to the ordinary law of the land
administered by the ordinary law court.
 Chapter 6: The Rule of Law

• This postulation includes equality,

justice, and equality of rights.
• It is also a constitutional provision even
by the provisions of Article 11, of the
Provisional Constitution of the Federal
Government of Somalia which indicates
that:
 Chapter 6: The Rule of Law

1. All citizens, regardless of sex, religion, social

or economic status, political opinion, clan,
disability, occupation, birth or dialect shall
have equal rights and duties before the law.
2. Discrimination is deemed to occur if the
effect of an action impairs or restricts a
person’s rights, even if the actor did not
intend this effect.
 Chapter 6: The Rule of Law

3. The State must not discriminate against any

person on the basis of age, race, colour, tribe,
ethnicity, culture, dialect, gender, birth, disability,
religion, political opinion, occupation, or wealth.
4. All State programs, such as laws, or political and
administrative actions that are designed to achieve
full equality for individuals or groups who are
disadvantaged, or who have suffered from
discrimination in the past, shall not be deemed to
be discriminatory.
 Chapter 6: The Rule of Law

• In general a further interpretation of this

postulation means that no man is
above the law and that every man,
whatever, his rank or condition is
subject to the law of the land.
• There are a number of exceptions when
it comes to practical experiences.
 Chapter 6: The Rule of Law

• Furthermore, in modern times, it is not

easy to keep to the ideal that every
person is brought before the ordinary
courts of law.
• Special courts, as for example, juvenile
courts are established to handle special
cases.
 Chapter 6: The Rule of Law

• For example, from the nature of the duties

the judges, diplomatic representatives and
parliamentarians are usually protected
and given certain privileges.
• Similarly, the police have special powers
of arrest and search which the ordinary
man does not possess.
 Chapter 6: The Rule of Law

• We also have courts for the trial

of military personnel who have
committed offences. These
courts apply special laws which
do not apply to every citizen.
 Chapter 6: The Rule of Law

• On the whole, the demands of modern

government suggest that many persons have
peculiar rights, powers, immunities and duties
which the ordinary citizen does not have.
• Therefore, that equality before the law in
modern times does not mean that every
person, officials and ordinary citizens alike
have the same rights and duties.
 Chapter 6: The Rule of Law

• In any case, by considering all above

statements, it is also said that the Rule of
Law presupposes and assumes:-
1. That the state is subject to law.
2. That the judiciary is necessary agency of the
Rule of Law.
3. That government should respect the right of
individual citizens.
 Chapter 6: The Rule of Law

4. That to the judiciary is assigned the

role of adjudicating in proceedings
relating to matters in dispute between
persons or between government or
an authority and any person in their
respective country.”
 Chapter 6: The Rule of Law

• Rather, it means that all

people are subject to the law
but the law which some are
subject may be different from
the law to which others are
subject.
 Chapter 6: The Rule of Law

• Requirements for the Validity of the Rule

of Law:
1. Law should be prospective in its effects.
2. The Law in such countries should be certain,
clear and publicly known.
3. Laws should be general
4. The judiciary should be independent and
easily accessible.
 Chapter 6: The Rule of Law

• In conclusion, from the basic concept of

the rule of law so far discussed, it is
clear that as a constitutional concept, it
is desirable. The utility value cannot be
overestimated and overvalued
otherwise; there would be chaos and
disorder.
Chapter 7: Parliamentary Supremacy

• A System of parliamentary
government involves the
supremacy of the parliament.
Presidential Government on the
other hand adopts the supremacy
of the constitution.
Chapter 7: Parliamentary Supremacy

• In UK and some other countries, the

Parliamentary supremacy means that a
legislative body is supreme to all other
government institutions, including any
executive or judicial bodies.
• Generally, the courts cannot overrule its
legislation and no Parliament can pass laws
that future Parliaments cannot change.
Chapter 7: Parliamentary Supremacy

• Parliamentary Supremacy and Courts in UK:

• In UK the doctrine of parliamentary supremacy
and sovereignty is about the relationship
between the Parliament and the courts.
• The question can be, is parliament supreme or
the courts? As we have stated above, UK is
known to have parliament supremacy, but to
what extent?
Chapter 7: Parliamentary Supremacy

• Prof. Dicey puts forward that parliament is

supreme, meaning that „Parliament has,
under the English constitution, the right to
make or unmake any law whatever; and
further that no person or body is recognised
by the law of England as having a right to
override or set aside the legislation of
Parliament”.
Chapter 7: Parliamentary Supremacy

• The doctrine of parliament supremacy and

sovereignty of the UK can be summarised in
three points;
1. Parliament has the power to make any law
they wish, and no parliament can create a
law that a future parliament cannot change
and only parliament can change or reverse a
law passed by parliament.
Chapter 7: Parliamentary Supremacy

2. It gives unconditional power to the

Westminster Parliament.
3. Consequently, it is said that the courts have
no authority to judge statutes invalid, and
that there are no fundamental constitutional
laws that parliament cannot change, other
than the doctrine of parliament supremacy
and sovereignty itself.
Chapter 7: Parliamentary Supremacy

• Therefore, the only instance when courts

are willing to question the legitimacy of
statutes is when there is a question as to
them not being passed using the correct
procedure; which is passing through both
Houses and receiving the Royal Assent
and Agreement. This is known as the
“Enrolled Bill” rule.
Chapter 7: Parliamentary Supremacy

• Parliamentary Supremacy in General:

• In general, it is a fundamental principle of
democratic governments that there
should be an elected assembly –
parliament - representing the people,
and that assembly should have authority
to make laws that apply to the entire
population.
Chapter 7: Parliamentary Supremacy

• On the other hand, a parliamentary

system is a system of democratic
governance of a state in which the
executive branch derives its democratic
legitimacy from, and is held accountable
to the legislature (parliament); the
executive and legislative branches are
thus interconnected.
Chapter 7: Parliamentary Supremacy

• In a parliamentary system, the head

of state or president is normally a
different person from the head of
government, as we will discuss in
the coming chapter of government
systems.
Chapter 7: Parliamentary Supremacy

• But there is no universal agreement that

such an assembly should have an absolute
and unlimited power to make laws of
whatever kind and subject matter.
• Indeed, in many national constitutions both
the existence of the assembly and the extent
and effective of its powers are set out in the
constitution itself.
Chapter 7: Parliamentary Supremacy

• Democracy of the parliament:

• In general one of the most important
features that contribute the parliament
supremacy in this world is the
democracy, considering the parliament
democracy;
Chapter 7: Parliamentary Supremacy

• in short, a parliamentary democracy

is a system of government in which
citizens elect representatives to a
legislative parliament to make the
necessary laws and decisions for
the country. This parliament directly
represents the people.
Chapter 7: Parliamentary Supremacy

• In a parliamentary democracy, you have

a Prime Minister, who is first elected as
a member of parliament, then elected
Prime Minister by the other members of
the parliamentary legislature. However,
the Prime Minister remains a part of the
legislature.
Chapter 7: Parliamentary Supremacy

• The legislative branch makes the laws, and thus

the Prime Minister has a hand in law-making
decisions.
• The Prime Minister works directly with other people
in the legislature to write and pass these laws.
• In presidential democracy, we still have a
legislature, but we also have a president. He is
separate from the legislature, so although he works
with them, it is not as direct as if he were a Prime
Minister.
Chapter 7: Parliamentary Supremacy

• The laws that the legislature wants to pass

must go later through the president; he can
sign them into being or he can return them
for some reasons or veto them like USA.
• Furthermore, in parliamentary systems, the
legislature has the right to dismiss a Prime
Minister at any time if they feel that he or she
is not doing the job as well as expected.
Chapter 7: Parliamentary Supremacy

• This is called a “motion of no

confidence,”.
• In the US, impeachment is an
extensive, formal process in which an
official is accused of doing something
illegal.
 Chapter 8: Sovereignty

• 8.1: Introduction:
• According to the currently new world, it is
agreed as a general silence doctrine and
maxim that “no state or republic of federation
is recognized as an independence unless it
has full, complete and absolute sovereignty
internally as well as externally” which has
been clearly indicated its constitution.
 Chapter 8: Sovereignty

• On the other hand, every

constitution of independence and
sovereignty state must specify its
power and sovereignty over its
territory, people and that it has clear
legitimacy as well as legality.
 Chapter 8: Sovereignty

• Considering in Somali’s institutions from

independence date in 1960 to the last
constitution in 2012 all clearly lay down the
sovereignty of Somali republic over its
territory, people and unity of Somalia. For
example, the current provisional constitution
touches on these issues its first Article as
follows;
 Chapter 8: Sovereignty

• Article 1: The Federal Republic of

Somalia:
1) Somalia is a federal, sovereign, and
democratic republic founded on
inclusive representation of the people,
a multiparty system and social justice.
 Chapter 8: Sovereignty

2) After Allah “the Almighty”, all power is vested in

the people and can only be exercised in
accordance with the Constitution and the law and
through the relevant institutions. It is prohibited
for a person or a section of the public to claim the
sovereignty of the Federal Republic of Somalia,
or to use it for their personal interest.
3) The sovereignty and unity of the Federal
Republic of Somalia is inviolable.
 ‫‪Chapter 8: Sovereignty‬‬

‫• دستور جم‪N‬هورية السودان‪ :‬الحاكمية والسيادة‬

‫• المادة ‪4‬‬
‫• الحاكمي‪Q‬ة ف‪Q‬ي الدول‪Q‬ة هلل‪ Q‬خال‪Q‬ق البش‪Q‬ر ‪ ،‬والس‪Q‬يادة فيه‪Q‬ا لشع‪Q‬ب‬
‫عبادة‪ QQ‬هلل‪ QQ‬وحمالً لألمان‪QQ‬ة‬
‫ً‬ ‫الس‪QQ‬ودان المس‪QQ‬تخلف‪ ،‬يمارس‪QQ‬ها‬
‫وعمار ًة‪ Q‬للوط‪Q‬ن وبس‪Q‬طا ً للعدل والحري‪Q‬ة والشورى ‪ ،‬وينظمه‪Q‬ا‬
‫الدستور والقانون‪.‬‬
 ‫‪Chapter 8: Sovereignty‬‬

‫دستور جمهورية إيران اإلسالمية‪ :‬الحاكمية والسيادة‬ ‫•‬

‫المادة ‪56‬‬ ‫•‬
‫الس‪Q‬يادة المطلق‪Q‬ة عل‪Q‬ى العال‪Q‬م وعل‪Q‬ى اإلنس‪Q‬ان هلل‪ ،Q‬وه‪Q‬و الذي‬ ‫•‬
‫من‪Q‬ح اإلنس‪Q‬ان ح‪Q‬ق الس‪Q‬يادة عل‪Q‬ى مص‪Q‬يره االجتماعي‪ .‬وال‬
‫يح‪Q‬ق ألح‪Q‬د س‪Q‬لب اإلنس‪Q‬ان هذا الح‪Q‬ق اإلله‪Q‬ي أ‪Q‬و تس‪Q‬خيره ف‪Q‬ي‬
‫خدم‪Q‬ة فرد أ‪Q‬و فئ‪Q‬ة ما‪ .‬والشع‪Q‬ب يمارس هذا الح‪Q‬ق الممنوح‬
‫من هللا بالطرق المبينة في المواد الالحقة‪.‬‬
 ‫‪Chapter 8: Sovereignty‬‬

‫المادة ‪57‬‬ ‫•‬

‫الس‪Q‬لطات الحاكم‪Q‬ة ف‪Q‬ي جمهوري‪Q‬ة إيران اإلس‪Q‬المية‬ ‫•‬
‫ه‪Q‬ي الس‪Q‬لطة التشريعي‪Q‬ة‪ ،‬والس‪Q‬لطة التنفيذي‪Q‬ة‪ ،‬والس‪Q‬لطة‬
‫القضائي‪QQ‬ة‪ ،‬وه‪QQ‬ي تمارس ص‪QQ‬الحياتها بإشراف ول‪QQ‬ي‬
‫األم‪Q‬ر المطل‪Q‬ق وإمام األم‪Q‬ة‪ ،‬وفقا ً للمواد الالحق‪Q‬ة ف‪Q‬ي‬
‫هذا الدس‪Q‬تور‪ .‬وتعم‪Q‬ل هذه الس‪Q‬لطات مس‪Q‬تقلة بعضه‪Q‬ا‬
‫عن بعض‪.‬‬
 Chapter 8: Sovereignty

• The term sovereignty refers in law: “the ultimate

power, authority and/or jurisdiction over a people
and a territory”.
• No other person, group, tribe or state can tell a
sovereign entity what to do with its land and/or
people. A sovereign entity can decide and
administer its own laws, can determine the use of
its land and can do pretty much as it pleases, free
of external influence (within the limitations of
international law).
 Chapter 8: Sovereignty

• Two major points of view with regard to the

concept of sovereignty can continuously be
identified.
• The first view is that sovereignty means
absolute power above the law and that
absolute sovereignty constitutes one of the
most powerful and inviolable principles in
international law.
 Chapter 8: Sovereignty

• The second view is that it is of greatest

significance that states - as the most important
subjects of international law - do not claim that they
are above the law or that international law does not
bind them.
• In this contribution the theoretical foundation of
state sovereignty will be discussed by giving a
broad overview of the historical development of the
notion of state sovereignty.
 Chapter 8: Sovereignty

• 8.2: Internal and external sovereignty

• Internal sovereignty is the competence and
authority to exercise the function of a state within
national borders and to regulate internal affairs
freely.
• External sovereignty is traditionally understood
as legal independence from all foreign powers,
thus protecting the state's territory against all
outside interference.
 Chapter 8: Sovereignty

• External sovereignty broadly includes

international independence, the right to
international self-help and the authority
to participate in international society.
• The idea of external sovereignty
eventually led to the development of
modern international law.
 Chapter 8: Sovereignty

• 8.3: The traditional understanding of

sovereignty:
• 1. Jean Bodin (1530-1596)
• The traditional understanding of sovereignty as
independence and supreme authority may be
attributed to Jean Bodin’s sixteenth-century
definition of sovereignty in his work “The Six Books
of Republic”. as the absolute or perpetual and
continuous power of a state.
 Chapter 8: Sovereignty

• According to Bodin, the concept of

sovereignty primarily entails and
involves the absolute and sole
competence of law making within the
territorial boundaries of a state and that
the state would not tolerate any other
law-creating agent above it.
 Chapter 8: Sovereignty

• He maintains that sovereignty, as the

supreme power within a state, cannot
be restricted except by the laws of God
and by natural law. No constitution can
limit sovereignty and therefore a
sovereign is regarded to be above
positive law.
 Chapter 8: Sovereignty

• According to Bodin‟s theory of sovereignty, the

sovereign power is bound by international law,
which results either from treaties or from divine or
natural law.
• Although Bodin’s conception of sovereignty as
introduced in the sixteenth century was accepted
by writers on politics, the majority of these writers
held the opinion that sovereignty may be restricted
by a constitution and by positive law.
 Chapter 8: Sovereignty
• Mr. Hobbes (1588-1679) went even further than
Bodin by stating that a sovereign was not bound
by anything and had a right over everything,
including religion.
• In contrast, Mr. Pufendorf (1632-1694) denied
that sovereignty involves authority. According to
him sovereignty is the supreme power of a state,
but not the absolute power. Sovereignty may
therefore be constitutionally restricted.
 Chapter 8: Sovereignty
• 2. The Spanish philosophers:
• The Spanish philosophers’ concept of
sovereignty is based on the existence of
a assumed world community with an
undisputed legal character and the
interdependent relationship between
states.
 Chapter 8: Sovereignty
• In his work, Mr. Francisco de Vitoria, one of the
fathers of modern international law, proposes
that the “International Law” is the result of man’s
rational nature and natural law and therefore
common to all mankind.
• A state cannot refuse to be subjected to
international law as international law has been
established by the whole world.
 Chapter 8: Sovereignty
• Sovereign independence is thus not absolute
as the sovereignty of a state finds its limits in
the common good of the world community to
which all states are subject.
• He therefore makes a distinction between
natural law and the “ius gentium”. The “ius
gentium” or positive international law has a
dual meaning;
 Chapter 8: Sovereignty

• First, it refers to the law that has to be

respected in the relations between
states and,
• Secondly, it refers to the law that all
states commonly accept and respect
internally.
 Chapter 8: Sovereignty
• Because the “International Law” is
established by common usage it creates a
general obligation.
• Furthermore, international law includes
certain fundamental principles of natural law
that are unchangeable and binding on
states, such as the principle of “respecting
and tolerating”.
 Chapter 8: Sovereignty
• Conclusion; traditionally sovereignty has been
denoted as the independence and supreme authority
of a state.
• Therefore, sovereignty is often conceived as an
absolute concept which implies that states are totally
independent with regard to all other states and are
above the rules of international law.
• However, it evident that the early authors of
international law did not regard state sovereignty as
absolute and unlimited, but subject to higher norms.
 Chapter 8: Sovereignty
• 8.4: Westphalian sovereignty:
• The Thirty Years War in Europe was ended
in “1648” with the Peace of Westphalia.
• The new world society that was established
after the Peace of Westphalia was premised
on the absolute sovereignty of its
constituent members.
 Chapter 8: Sovereignty
• The Peace of Westphalia recognized the
equality of states as a principle of modern
international law. The equality of states
was recognized irrespective of their
Catholic, Protestant or other trusts faith
and of their monarchical or republican
form of government.
 Chapter 8: Sovereignty
• Westphalian treaties formally ended the old-
fashioned conception of a society of states that is
organized hierarchically and thus on the basis of
inequality.
• The nation state was seen as an instrument of
effective power, and international law was
regarded as a law between the free and
independent states which were primarily
concerned with the promotion of their individual
interests.
 Chapter 8: Sovereignty
• The Peace of Westphalia,
however, obliged states to defend
and protect the peace and
thereby combined the principle of
sovereignty with a duty to
cooperate.
 Chapter 8: Sovereignty
• 8.5: The classical understanding of
sovereignty:
• The Peace of Westphalia laid down
the foundation for an international
order based on independent
sovereign states.
 Chapter 8: Sovereignty
• In the eighteenth century a
distinction was made between
absolute, full sovereignty on the
one hand, and relative, imperfect
or half sovereignty on the other.
 Chapter 8: Sovereignty
• Absolute sovereignty was ascribed to
monarchs who had an unqualified
independence within and without their states.
• Relative sovereignty was attributed to those
monarchs who were to some extent
dependent on other monarchs in the different
aspects of the internal or foreign affairs of the
state.
 Chapter 8: Sovereignty
• As a result of the distinction
between absolute and relative
sovereignty, the divisibility of
sovereignty was recognized,
although not universally, during
this century.
 Chapter 8: Sovereignty
• The revolutionary changes in the
late eighteenth and early nineteenth
century gave rise to a new concept of
sovereignty which now included the
concept of the equality of states as
one of its essential elements.
 Chapter 8: Sovereignty
• The concept of sovereignty also contained the
important, but negative, principle of non-intervention
in the internal affairs of other states. It was generally
accepted that sovereignty is an essential element of
state power and that it signifies supremacy of the
state in its internal and independence in its external
relations.
• In “1945” this principle found a way into the United
Nations Charter in the form of Article 2(7).
 Chapter 8: Sovereignty
• During the nineteenth century the nation-state and
imperialism joined and led to what was later known as
the “anarchy of sovereignty”.
• The concept of sovereignty was interpreted as
justifying the use of absolute power or symbolizing
the possession of it. The sovereignty of a state was
not seen as a power to be used towards the common
good of the international community, but as a
subjective right to be exercised in the own
interest of a state.
 Chapter 8: Sovereignty

• 8.6: A new understanding of sovereignty:

• Since the beginning of the twentieth century it
has become increasingly apparent that the
classical approach to sovereignty as absolute
and unlimited authority constitutes a threat to
international peace and to the existence of
independent nation states.
 Chapter 8: Sovereignty

• The basic and cardinal

question was asked whether a
sovereign state, with no
authority above it, can be
bound by international law.
 Chapter 8: Sovereignty
• With reference to many international cases, this has
been tried to explain the binding force of
international law by using the legally meaningless
theories that a sovereign state, when entering into a
legal relationship with another state, subjects itself
to international law by an act of self-limitation,
from which the state may disengage itself at any
time without violating any law.
• The state is thus only subjected to its own will.
 Chapter 8: Sovereignty
• The writer Mr. Nussbaum also refers to this case in to
other case of the difference between International law
and municipal law, in which a distinction is made
between them by referring to their bases and
sources.
• He contends that international law regulates the
relationship between states, while municipal law is
concerned with the relations between individuals or
between individuals and the state.
 Chapter 8: Sovereignty
• With regard to their sources, municipal law is
derived from the particular law of the state, while
international law finds its source in the common
will of the states.
• In order to give an international rule effect in
municipal law, it must be transformed into a rule of
municipal law by an act of national legislation.
This is called the dualist doctrine of
international law.
 Chapter 8: Sovereignty
• However, as a result of the horrors of war, anti-
sovereign doctrines emerged that tended to
replace the dualist doctrine which placed
emphasis on the will of states, with a monistic
approach that a common source for international
and national law sought to establish.
• Some of the most important authors of the
monistic school of thought include Krabbe, Duguit
and Kelsen.
 Chapter 8: Sovereignty

• According to Krabbe international law

comes into existence when people
from different states, as a result of
external events, broaden their
consciousness of right in order to
include international relations.
 Chapter 8: Sovereignty
• The source of the resulting rules of
international law is not the will of
states, but the consciousness of law
felt by individuals whose interests are
affected by the rule or who have a
constitutional duty to take care of
these interests.
 Chapter 8: Sovereignty
• Therefore, national and international
law have essentially the same quality
and are above state rule. However,
because international law is the law
of the larger community, it takes
precedence over national law.
 Chapter 8: Sovereignty
• On the other hand, the principle of
absolute sovereignty is thus replaced by
a concept of relative sovereignty,
where the freedom of each state is limited
by the freedom of other states and the
independence of a state is subjected to
international law.
 Chapter 8: Sovereignty
• 8.7: Sovereignty as interdependence and co-
operation:
• Mr. Friedmann makes a distinction between the
classical system of international law of co-
existence and a new international law of co-
operation. He identifies the beginning of this
new international law as the period between the
First and the Second World Wars of the
twentieth century.
 Chapter 8: Sovereignty
• The shift of the international society,
from an essentially negative code of
rules of holding back and abstention,
to positive rules of co-operation, is a
development of immense significance
for the principles and structure of
international law.
 Chapter 8: Sovereignty
• States have come to realise that there
exists a need for co-operation in order to
achieve the advancement of community
goals and that all members of the
international community must take into
account the valid interests of the other
members when exercising their
sovereignty.
 Chapter 8: Sovereignty

• Although the majority of scholars of

international law are still of the opinion
that international law is founded on the
will of states, they contend that it must be
submitted to some restraint.
• This restraint may be found in the
conception of international society.
 Chapter 8: Sovereignty

• 8.8: Sovereignty as the responsibility

to protect:
• The shift away from the idea of
unconditional sovereignty is evident in the
emergence of the concept of responsible
sovereignty.
 Chapter 8: Sovereignty

• This is of the opinion that government

legitimacy validates the exercise of
sovereignty involves adherence to minimum
humanitarian norms and a capacity to act
effectively to protect citizens from acute
threats to their security and well-being that
derive from adverse conditions within a
country.
 Chapter 8: Sovereignty
• For example, the - Independent International
Commission on Intervention and State Sovereignty -
was established in September 2000 by Canada to
answer the question posed by Kofi Annan: "if
humanitarian intervention is, indeed, an unacceptable
assault on sovereignty, how should we respond to a
Rwanda, to a Srebrenica - to gross and systematic
violations of human rights that affect every precept of
our common humanity?" 
 Chapter 8: Sovereignty

• The Commission suggests that sovereignty

should be seen as the RESPONSIBILITY TO
PROTECT. According to the Commission in
their Report on the Responsibility to Protect,
this implies that,
• First, that the state authorities are responsible
for the functions of protecting the safety and
the lives of citizens and the promotion of their
welfare.
 Chapter 8: Sovereignty

• Secondly, it suggests that the national political

authorities are responsible to the citizens
internally and to the international community
through the United Nations.
• Thirdly, it means that the agents of the state
are responsible for their actions and are thus
accountable for their acts of commission and
omission.
 Chapter 8: Sovereignty
• In view of its approach to sovereignty as
the responsibility to protect, the
Commission supports intervention for
human protection purposes when major
harm to civilians is occurring or imminently
apprehended, and the state in question is
unable or unwilling to end the harm, or is
itself the offender.
 Chapter 10: System of
Governments:
• 10.2: Federal System of the Government:
• Definitions:
• The concept of federalism relates to the division
of power between national government and
state governments and also division of the
national government powers in to three different
branches namely, executive, legislation and
judiciary.
 Chapter 10: System of
Governments:
• Definitions:
• A systems of government or form of
state governance, refers to the set of
political institutions by which a
government of a state is organized in
order to apply and exert its powers.
 Chapter 10: System of
Governments:
• Federalism is the process of federating as
well as the particular design which the
inter-group relation exhibits at the
particular time, not only unification system
like; (Germany, USA etc.), but also
proliferation and multiplying system like;
(Russia, India, Somalia etc.)
 Chapter 10: System of
Governments:
• 10.3: Basis and Justification of Federalism:
• Federalism evolves in various nations for
different reasons, but is mostly seen in nations
with
 vast area and expanse of land and
 multi-ethnic peoples; or
 diverse religions, historical, political or other
backgrounds.
 10.4: Characteristics of a federal
system of government

1. SUPREMACY OF THE CONSTITUTION:

• It is the constitution that spells out the extent and
limits of power exercisable by the central (Federal)
government and its component parts (States). This
is to minimize frictions.
• One of the fundamental features of a federal
arrangement is the need for a supreme
constitution which binds all persons, governments
and authority.
 10.4: Characteristics of a federal
system of government

• As we have mentioned also the

Provisional Constitution of the Federal
Government of Somalia in Article 4
states that “After the Sharia, the
Constitution of the Federal Republic of
Somalia is the supreme law of the
country.
 10.4: Characteristics of a federal
system of government

2. DIVISION OF POWERS:
• The federal process is conditioned by a distinctive
division of powers between the central (Federal)
and other levels of government (State and Local).
• Every constitution of federal states in this world
clearly defines and demarcates the functions and
powers between the federal and state
governments of their own country.
 10.4: Characteristics of a federal
system of government

• Division of powers in the federal state

1. The Federal Constitution shall specify, exclusively,
the powers of both the Federal State and the States.
2. The Federal Constitution shall specify, exclusively,
the powers of states, and leave the others to the
Federal State
3. The Federal Constitution shall specify, exclusively,
the powers of the Federal State, and leave the
others to states.
 10.4: Characteristics of a federal
system of government

• Article 54. Allocation of powers

• The allocation of powers and resources
shall be negotiated and agreed upon by
the Federal Government and the
Federal Member States, except in
matters concerning:
 10.4: Characteristics of a federal
system of government

(A) Foreign Affairs;

(B) National Defense;;
(C) Citizenship and Immigration;;
(D) Monetary Policy,
• which shall be within the powers and
responsibilities of the federal government.
 10.4: Characteristics of a federal
system of government

• Article 53. International Negotiations

1)In the spirit of inter-governmental cooperation
the Federal Government shall consult the
Federal Member States on negotiations
relating to foreign aid, trade, treaties, or other
major issues related to international
agreements.
 10.4: Characteristics of a federal
system of government

2) Where negotiations particularly affect Federal

Member State interests, the negotiating delegation
of the Federal Government shall be supplemented
by representatives of the Federal Member States
governments.
3) In conducting negotiations, the Federal Government
shall regard itself as the guardian of the interests of
the Federal Member States, and must act
accordingly.
 10.4: Characteristics of a federal
system of government

3. RIGID CONSTITUTION:
• Another institutionalized device in a federal
system is the existence of a rigid form of
amending the federal constitution.
• This is to preserve the corporate existence
of the country and check secession bid by
any of the states making up the federation.
 10.4: Characteristics of a federal
system of government

• On the other hand, the federal process is broken

in by a distinctive division of powers between the
three branches of the federal which are legislative
- Parliament -, executive - Administration - and
Judiciary - arbitrator -.
• The constitution of federal must also define the
functions and powers of the each three branches
separately.
 Government Structure: Presidential,
Parliamentary, or Semi-Presidential?

• There are essentially three options for

constituting a representative system of
government: one based on a
parliamentary system, one based on a
presidential system, and one based on
some mixture of the two (usually called
semi-presidentialism).
 Government Structure: Presidential,
Parliamentary, or Semi-Presidential?

• The simplest definition of the differences between

the two approaches can thus be summed up by the
degree of relative independence of the executive.
• Presidential systems are characterized by
executive independence, whereas
parliamentary systems are characterized the
mutual dependence of both legislative and
executive capacities.
 Government Structure: Presidential,
Parliamentary, or Semi-Presidential?

• Parliamentary systems are characterized by the

legislature being the principal arena for both
lawmaking and (via majority decisions) for
executive power.
• Presidential systems are characterized by the
separation of the executive and legislative
branches, with executive authority residing
outside the legislature, with the president and
his or her cabinet.
 PARLIAMENTARY SYSTEM

• PARLIAMENTARY SYSTEM OF GOVERNMENT

• Parliaments are common over the whole of the
civilized world. English parliament is the Mother of all
Parliaments.
• The Theory of parliamentary system
• There are four things involved in the system of
parliamentary democracy.
• First the Parliament is elected representative
candidates.
 PARLIAMENTARY SYSTEM

• The second is a system of Parties, each

reflecting some general trend of thought
pervading all the society-which will submit
to the electorate a number of candidates
for its choice and the programme of policy
for which the candidates stand.
 PARLIAMENTARY SYSTEM

• A system of parties is a necessary part of

any system of representation.
• the third characteristic is a cabinet that
guides the parliament, and yet at the same
time is itself guided by the parliament.
• The last and the foremost characteristic is
the idea of representation.
 PARLIAMENTARY SYSTEM

• Chief Characteristics of Parliamentary

System
• In the parliamentary system the chief
executive of the state (Prime Minister) is
not elected directly by the people, but he
is normally the leader of the majority party
in the Parliament.
 PARLIAMENTARY SYSTEM

• He chooses his own Cabinet which

again.
• The entire Cabinet is accountable to
the Parliament and as soon as it
looses confidence of the Parliament,
it has to resign from the office.
 PARLIAMENTARY SYSTEM

• As against this, in the Presidential

system, the chief executive i.e. the
President is elected directly by the people
for a fixed term and he chooses his own
ministers.
• Neither the President nor the Secretaries
are accountable to the Parliament.
 PARLIAMENTARY SYSTEM

1. In a Parliamentary system powers are

centered in the Parliament, The Legislature
takes the responsibility of government.
2. The executive is divided in two parts- Head
of the state i.e. Monarch or the President,
and the head of the Government i.e. Prime
Minister. The former, is the titular head and
the latter is the real executive head.
 PARLIAMENTARY SYSTEM

3. The head of the State appoints the

head of the Government. In case of
Majority Parliamentarianism, the
President or the crown has no option
but in minority Parliamentarianism the
President or the crown may enjoy
prerogative in this matter.
 PARLIAMENTARY SYSTEM

4. The head of the Government has full

say in appointment of his Ministry.
Ministers are formally appointed by the
crown or president but Prime Minister
alone is responsible for the composition
of the Ministry.
 PARLIAMENTARY SYSTEM

5. The Ministerial responsibility is

collective. It indicates both the cause
and the effect of the cabinet solidarity.
The Government can remain in office
as long as it enjoys the confidence of
popular house.
 PARLIAMENTARY SYSTEM

6. Collegiate Nature of the executive

indicates that a decision making process
has been shifted to a collective body.
7. Ministers are usually members of the
Parliament.
8. The head of the Government may advice
the head of the State to dissolve the
Parliament.
 PARLIAMENTARY SYSTEM

9. There is a mutual dependence between the

government and the parliament.
10. The government as a whole is only indirectly
responsible to the electorate.
11. Though the ultimate power to control and
supervise the executive rests with the
Parliament, in practice, it is the Prime
Minister who has become all powerful.
 PARLIAMENTARY SYSTEM

12.This system does not represent

truly the principle of separation of
powers. There is no separation of
personnel between the executive
and the legislature.
 PARLIAMENTARY SYSTEM

• Merits of Parliamentary form of

Government
1. One of the principal merits of the
parliamentary government is that it provides
for the maintenance of harmonious relations
between the legislative and the executive
branches of government.
 PARLIAMENTARY SYSTEM

2. It is the best specimen of representative

democracy as it recognises the ultimate
sovereignty of the people and ensures
ministerial responsibility. 
3. A third merit of parliamentary government is
its flexibility and elasticity. People can easily
change the government It is therefore,
specially suitable to meet emergencies.
 PARLIAMENTARY SYSTEM

4. The parliamentary form of government is that it

can claim high educative value. It cannot function
without well organised political parties. Political
parties formulate, organise and educate public
opinion.
5. Lastly, the merit of parliamentary government is
its achievement of a close union between law-
making and administration.
 PARLIAMENTARY SYSTEM

• Demerits of Parliamentary form of Government:

1. It is maintained that it violates the theory of
separation of powers.
2. It is further pointed out that parliamentary
government is unstable. It has no fixed life.
3. Further, it is criticised that this form of government
lacks promptness in deciding and taking immediate
action in times of national crisis or emergency.
 PARLIAMENTARY SYSTEM

4. the parliamentary government is that it results

in irresponsible criticism by the political
parties.
• Generally the political power of the State is
monopolised for a fixed period by one party
and this results in the dictatorship of one man
or a small group of men who are the leaders
of the party.
 Presidential System of Government:

• Definition:
• “is a government where all executive powers are
conferred and vested in a president who is the
head of state and head of government”.
• The President is elected directly by the people or
indirectly through an electoral college.
• The President and the cabinet of ministers
appointed by him are not members of the
legislature.
 Presidential System of Government

• The President is free to choose his

ministers from within and outside his
party.
• The President is a member of the ruling
party.
• The party advises and supports him and
he implements the programmes of the
party.
 Presidential System of Government

• The ministers are first responsible to the

president who appointed them and he is
primarily responsible to discipline the
ministers.
• The legislature and the executive may
be controlled by different political
parties.
 Presidential System of Government

• The president is responsible to the

legislature which may investigate and
impeach him for gross misconduct and
• He is also responsible to the people
who are the sovereign power in a
country and who may not renew his
mandate at election.
 Presidential System of Government

• The United States of America, Turkey,

Nigeria, Ghana, Kenya and South Africa
etc. are examples of countries operating
a presidential system of government in
this world.
• There are many checks and balances
under the presidential system of
government.
 Presidential System of Government

• While the legislature may refuse to vote

for taxes or other main national
functions, thus checking is a difficult to
the Executive, the Executive (President)
in turn - may veto as USA or refuse to
sign - a bill which has been passed by
an uncompromising legislature.
 Presidential System of Government

• But if the bill is passed the second time

by two thirds majority of the parliament,
it becomes law.
• One can then say that the presidential
model of government is in essence a
government of separation of powers
coupled with checks and balances.
 Presidential System of Government

• If the president is absent or

becomes disable and
incapacitate the Vice president
and the cabinet members act on
his behalf, until the next
president is elected.
 Electoral Systems

• Electoral systems are the rules and

procedures via which votes cast in an
election are translated into seats won in the
parliament.
• An electoral system is designed to do three
main jobs.
• First, it will translate the votes cast into
seats won in a legislative chamber.
 Electoral Systems

• Second, electoral systems act as the conduit

through which the people can hold their
elected representatives accountable.
• Third, different electoral systems give
incentives for those competing for power to
express their appeals to the electorate in
distinct ways.
 ELECTORAL SYSTEMS AROUND THE
WORLD

• There are countless electoral system variations,

but essentially they can be split into nine main
systems which fall into three broad families.
• Plurality-Majority Systems
• These comprise two plurality systems, First
Past the Post and the Block Vote, and two
majority systems, the Alternative Vote and the
Two-Round System.
 ELECTORAL SYSTEMS AROUND THE
WORLD

1. First Past the Post (FPTP) is the world's most

commonly used system. Contests are held in
single-member districts, and the winner is the
candidate with the most votes, but not necessarily
an absolute majority of the votes.
• FPTP is supported primarily on the grounds of
simplicity, and its tendency to produce
representatives beholden to defined geographic
areas.
 ELECTORAL SYSTEMS AROUND THE
WORLD

• Countries that use this system include the United

Kingdom, the United States, India, Canada, and most
countries that were once part of the British Empire.
• The Block Vote (BV) is the application of FPTP in
multi- rather than single-member districts.
• Voters have as many votes as there are seats to be
filled, and the highest-polling candidates fill the
positions regardless of the percentage of the vote
they actually achieve.

•  
 Proportional Representation Systems

• All Proportional Representation (PR) systems

aim to reduce the disparity between a party's
share of national votes and its share of
parliamentary seats.
• For example, if a major party wins 40 per cent
of the votes, it should also win around 40 per
cent of the seats, and a minor party with 10
per cent of the votes should similarly gain 10
per cent of the seats.
 Proportional Representation Systems

• For many new democracies,

particularly those that face deep
divisions, the inclusion of all
significant groups in the parliament
can be an important condition for
democratic consolidation.
 Proportional Representation Systems

• Criticisms of PR are two-fold: that it gives

rise to coalition governments, with
disadvantages such as party system
fragmentation and government instability;
• and that PR produces a weak linkage
between a representative and her or his
geographical electorate.
 Proportional Representation Systems

• And since voters are expected to vote for

parties rather than individuals or groups of
individuals, it is a difficult system to operate
in societies that have loose party structures.
• List PR systems are the most common type
of PR. Most forms of list PR are held in
large, multi-member districts that maximize
proportionality.
 Proportional Representation Systems

• List PR requires each party to present a list of

candidates to the electorate. Electors vote for a
party rather than a candidate; and parties
receive seats in proportion to their overall share
of the national vote.
• Winning candidates are taken from the lists in
order of their respective position. This system is
widely used in continental Europe, Latin
America and southern Africa.
 Semi-presidential system

• A semi-presidential system or dual
executive system is a 
system of government in which a
president exists alongside a 
prime minister and a cabinet, with the
latter being responsible to the legislature
of a state.
 Semi-presidential system

• It differs from a parliamentary system in that it

has a popularly elected head of state.  and
from the presidential system in that the 
cabinet, although named by the president, is 
responsible to the legislature, which may force
the cabinet to resign through a 
motion of no confidence.
 Semi-presidential system

• here are two separate subtypes of semi-

presidentialism: premier-presidentialism and
president-parliamentarism.
• Under the premier-presidential system, the
Prime Minister and Cabinet are exclusively
accountable to Parliament. The Parliament
chooses the Prime Minister and Cabinet, and
only the Parliament may remove them from office
with a vote of no confidence.
 Semi-presidential system

• The President does not have the right to dismiss or

appoint the Prime Minister or the Cabinet.This
system is much closer to pure parliamentarism.
• This subtype is used in Burkina Faso, Cape Verde,
East Timor, Lithuania, Madagascar, Mali, Mongolia,
Neger.
• Under the president-parliamentary system, the
prime minister and cabinet are dually accountable to
the president and the parliament.
 Semi-presidential system

• The president chooses the prime minister and

the cabinet but must have the support of a
parliamentary majority for his choice. 
• In order to remove a prime minister or the
whole cabinet from power, the president can
dismiss them, or the parliament can remove
them by a vote of no confidence.
 Semi-presidential system

• This form of semi-presidentialism is

much closer to pure presidentialism.
It is used in:
• Frace, Guinea-Bissau,
Mozambique, Namibia, Portuqal,
Russia, Senegal and Taiwan.
Thanks