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Statement (Bayaan) by UDAA and other Diaspora groups listed below
DATE: 02/08/2009
The Decisions of the Somaliland NEC and the President are Unlawful
and Damaging to the Conduct of the Election and to the interests of
Somaliland
Events to date
Like many other Somalilanders at home and abroad, we have watched
with increasing dismay the long saga of the presidential election
which has been postponed four times from its constitutionally
ordained period[i] of April 2008. We were heartened now and again to
see problems solved painstakingly through the Somaliland way of
consultation, co-operation and consensus. The code of conduct was
finally agreed on 11 July 2009 by the four sides (the three parties
and the National Electoral Commission – NEC-) and both Houses passed
the amendments needed to align the old 2002 Electoral Law with the
changes that have been made since in 2005 and in 2007[ii]. The next
step, under the agreement between the NEC and the parties, was the
production of the voters’ list by 27 July 2009, which would mark the
outcome of the $10m voter registration exercise and was to be
followed by the start of the campaigning and the polling date of 27
September 2009.
The voters register (list) was finally issued by the Interpeace[iii]
on 27 July 2009. The two opposition parties accepted the outcome but
the government party rejected it immediately. It is what happened at
this stage that has plunged Somaliland, again, into both a
constitutional/legal and political crisis. Instead of continuing to
solve the disagreement about the declared outcome of the voter
registration process, which started in October 2008, the NEC decided
that the release of the list to all the parties was a cardinal crime
and having met on 27 July 2009:
Resolved, by a majority vote of 4 out of 7 to set aside the voter
registration exercise and hold the presidential election without a
voters’ register;
ordered that legal expert, Mr Robin Zamora of Interpeace who has
been helping this NEC (and its predecessor) be “declared persona non
grata” and expelled immediately from the country;
threatened, in a publicly broadcasted interview, that any
presidential candidate that does not comply with their edict will be
disqualified.
As the NEC immediately passed its resolutions to the President, the
latter in turn implemented them and added that he no longer needs
the donors’ promised funds (amounting to millions of dollars) for
the election.
UDDA and the other Somaliland organisations signing this statement
believe that these precipitate and joint actions taken by the NEC
and the President, who is after all the Chairman of the third party
and a prospective candidate, are not only contrary to the electoral
and public laws of the country but are also extremely damaging to
Somaliland’s interests and to the standing and reputation of the
Somaliland NEC.
The rule of law
1. The rule of law is the cornerstone of the Somaliland Constitution
and the President and the NEC must abide by the laws of the country.
Simply put, neither the NEC nor the President can unilaterally or
bilaterally announce that the election will be held without voter
registration. Since the passage of the Voter Registration Act 2007
on 8 July 2007, no voting in Somaliland could take place without
voter registration. Article 30 of the Law states unequivocally that
for anyone to exercise his right to vote, he must do so, with his
voting card, at the relevant polling station, and Article 41 made
null and void any other previous laws or provisions which are in
conflict with this Law.
2. The fact that the 2002 Presidential and Local Councils Election
Law needed amendments to bring it in line with the changes made by
both the 2007 Registration Law and also 2005 (House of
Representatives) Election Law does not mean that without repealing
or amending the Registration Law itself, we can simply go back to
the position of the 2002 Law at the behest of the President, let
alone the NEC.
3. Although the amending bill to update the 2002 Law was passed by
both Houses, no announcement has been made yet that it has been
signed by the President and published in the official journal (as
set out in Article 66(2) of the bill) to bring it into force. Some
pro-government supporters stated that the bill contains an Article
67 which somehow allows election without voter registration, but the
bill (as confirmed by the House of Representatives[iv]) consists of
only 66 articles.
4. Article 66(1) of the new bill simply confirms that the amendments
shall be used only in every election held in Somaliland under the
voter registration system[v] and does not, in any way, amend or
qualify the Voter Registration Law. This is understandable as the
whole objective of the amending bill was to align the 2002 Law with
the newer laws and not the other way round.
5. As neither the amending law nor the Voter Registration Law set
out the procedures and circumstances when an election without voter
registration can be held, then any decision about setting aside the
2007 Law, even for temporary period, is one that can only be made
through a clear amending law passed by both Houses and the
President. There is nothing in this Law which says that the decision
about the validity or otherwise of the voter registration will be
made by the NEC or the President. On the contrary, it has has become
custom and practice and an obligation under Article 9(1) of the
Constitution (co-operation) that any such proposals options will be
discussed with the political parties and with others before any
decision can be made that would require also parliamentary approval.
6. In any case, it is a fundamental statutory duty of the NEC,
especially under the Voter Registration Law, to register all
potential voters and hold elections based on an electoral
register/roll. No public body in any country that we are aware of
has the power, on its own, to divest itself of a statutory duty that
it was entrusted with and to insist that its decision must be
binding on all other affected organisations.
7. If the Commission was simply making a recommendation, why has it
not discussed it fully with all the political parties and the donor
bodies and seek a consensus? Why did it report to the President only
and insisted that the opposition parties must fall in line?
The NEC
Above all the NEC, by law, must not only be impartial (Article 11(6)
of the 2002 Law), but must also seen to be impartial. The NEC
members were clearly aware that the three parties held different
views about the likely outcome of the voter registration exercise
and would have known that the best way to proceed in these
circumstances was to engage, as usual, in detailed consultations and
discussions before a consensus can be reached. This was the approach
the NEC has followed before and is was “codified” in the various
four way agreements with the three parties. The NEC members could
not therefore have been unaware that a decision on such an important
issue made with the agreement of Chairman of one of one the parties
could be seen as anything but partial. In these circumstances, one
can only conclude that the NEC was:
a) Neither contrite about its failure (no doubt shared by others) to
oversee a successful voter registration exercise;
b) nor interested in leaving room for all the possible options to be
examined with the continued advice and help from Interpeace and from
the donor countries; and
c) totally indifferent to how the opposition parties and the public
view its impartiality.
Conclusion and recommendations
We are seriously concerned that yet again we are facing another
crisis based on precipitate actions taken by a public body (the NEC)
and the government. At a time of financial difficulties worldwide
and in the light of the long delays in the payment government’s
contribution to the electoral expenses so far, we cannot understand
how Somaliland government could so easily reject offers of millions
of dollars from the donors.
Yet again we also hear that anyone who objects to these latest
edicts is working against the interests of Somaliland. The fact that
we have been the subject of no less two international reports[vi]
about the government’s human rights record this year is also linked
to this malaise and we have witnessed only recently the imprisonment
of radio journalists and the closure of a television station at an
election time when the media ought to be allowed to play its
important role.
We make the following recommendations so that free and fair
elections can be held soon:
The President
We earnestly urge the President to rescind the expulsion order of Mr
Robin Zamora and arrange a meeting of Interpeace, representatives of
the donors and the parties to mend fences.
We ask that the President and
Chairman of UDUB initiates immediately a genuine discussion on how
an election based on the declared registration can be held with the
added safeguards of the use of ink marking, UV rays, tighter control
of travelling, more polling staff/temporary booths in each polling
station etc.
We urge the President to issue a
decree ending the extra judicial activities of the security
committees and declaring that any one accused of a crime be brought
to a court of law in line with the constitution and laws of the
land.
A free and vibrant press and media is essential for democracy and we
urge that we urge that, in these election months, the Press Law
should be followed.
The NEC
We believe that the NEC (or some of its members) acted unlawfully
and have jeopardised the conduct of the election to the extent that
one party is already threatening not to participate in the election
as organised by you. We think that your actions, especially on the
part of the Chairman/Vice-Chairman meet the test of impeachable
offences under Article 63 of the 2005 Law. You have also lost the
confidence of two of the three parties. It has been proposed before,
not least by the donor bodies, that some of you are not up to the
job. We did not support these proposals out of concern for any
likely delays in the election. We are sad to admit that we were
wrong. We appeal to the current Chairman and Deputy Chairman to act
responsibly and consider their position as commissioners now.
We urge the rest of the NEC to
re-establish quickly working relationships with all the parties and
with Interpeace.
Parliament
We support fully the joint statement issued by both House Chairmen.
We ask that both Houses pass resolutions about the actions of the
NEC and the President. Whatever the final wording of these
resolutions may be, it is important that both Houses debate such
resolutions. Parliament has a voice and must be heard.
We believe that holding an
election without voter registration requires the endorsement of both
Houses, and that you should insist that you be consulted and
convinced of the advantages, if any, and the legal formalities for
choosing such an election.
We believe that the shortcomings
of the declared voter register/roll can be ameliorated by measures
to stop multiple or under age voting.
(Medium term) We urge both Houses
to set up a joint committee to study what has gone wrong over the
last few weeks and also with the whole voter registration process.
We suggest that you seek the full co-operation of the donors in your
investigation and ask them to provide finance for an independent
audit on the conduct of the registration procedure that can report
to you and them directly and to facilitate that Interpeace officials
provide evidence and testimony on their dealings with the NEC with a
view to learning from the experience.
Civil Society
We urge all civil society groups to monitor the progress and conduct
of the elections. You have every right to see that your government,
NEC and political parties act in accordance with the law and
constitution. Above all whilst acting peacefully and in accordance
with the laws and instructions of public officials, you should
record and report any infringements of rights to the proper
authorities/parties.
13. We are all proud of maintaining our peace and should continue to
do so. We must also safeguard the fundamental rights and freedoms
enshrined in our Constitution.
Diaspora groups
We urge all Diaspora groups to contribute more in monitoring the
conduct of the elections and in human rights and democracy issues.
The support for a specific party should not affect concern for the
wider public interest.
Accountablity
15. We remind all government and public officials that they are
accountable to the public - impunity is no longer acceptable.
Somaliland organisations making this statement:
UDDA – Promotion of the Constitution Group
SIRAG
Somalilandlaw.com
EAPI (East Africa Policy Institute)
SAC (Somaliland American Council)
Source: EAPI (www.eastafricapi.com)
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