“The Judiciary is “the least dangerous branch of the Government”- Prof. Alexander Bickel
Somalilandsun – The Judiciary together with the Executive & Legislature is considered the pillars of democratic system whose smooth operations are guided by the principle of separation of powers.
While the judges who recently complained of Executive interference have genuine grievances, the delicate balance of separation of powers cannot be achieved by outburst made at press conferences.
For ages justice has been personified as a blindfolded woman firmly holding a pair of scales & a two –edged sword. The image combines a strong pledged of impartiality & balance in competent judicial systems.
Somaliland’s judiciary has in the past been accused of lifting the blind fold to cast a kind eye on cases involving the rich & the powerful if the disclosure made by Hargeisa’s regional Court chair Hon. Feisal Abdullahi are anything to go by.
The last few months have witnessed a test of how the three arms of the Government relate to one another with Executive slowly turning Somaliland into a tyrannical state. First to undermine judicial authority was the interior minister Hon. Ali Waran’ade who accused judges & magistrates for acquitting criminals after the state has apprehended and completed investigations.
While such debates are considered healthy in good doses, recent events pose a danger to the Rule of Law. Again Judiciary has accused the Executive of undermining its authority by issuing orders on how to dispense justice & went ahead disclosing that the deputy minister for security Hon. Abdullahi Abokor Osman has written a letter authorizing the judge conducting the case to direct the matter to the competent land adjudication committee of Hargeisa Municipality which in his humble view has the competent jurisdiction to entertain the matter in accordance with Law No. 17 of 2001.
It is important there that sobriety be maintained by the judicial officials whose work has been interfered with.
Immediately after the judges’ outburst, the Executive issued a statement with the presidency contravening the judges’ complaints and advising them to employ the most strategic means using the system within the arms of the Government to find a lasting solution to the problems.
A critical look at Somaliland’s constitution tells you that reforms are inevitable with a people –friendly Judiciary.
When I read Chapter 4 of the constitution I am reminded of the words of Prof. Alexander Bickel of United State of America. He referred to the Judiciary as “the least dangerous branch of the Government”. He said unlike the Executive, it does not control the ‘sword’ of the society that is the coercive power of the state. And unlike the Legislature, it does not control the ‘purse of the nation’, that is the power to confer financial endowment to others.
Yet the design by which the constitution makes Judiciary “the least dangerous branch” again makes it the strongest: it is intended that Judiciary shall be an important centerpiece of the constitutional evolution of this country-because of the citizen refuge against the greater dangers that the other arms represent. Therefore Judiciary should be the most approachable branch of the Government to the ordinary citizen.
In a situation where” the least dangerous branch of the Government” functions optimally, it also proves for the citizens the most potent in terms of protection.
This has been assured in a number of ways. In the first place, Judiciary is the body to which the ultimum decision as to the meaning, essence and limits of the constitution will be determined. It is the Judiciary which will, in its exercise of power to interpret the constitution, apply and set the limits to the entitlements in the Bill of Rights, awaken the Legislature to enact laws that pass constitutional muster and keep the Executive within the confines intended for it under the constitution while holding it responsible when it fails to comply with its obligations under the constitution.
Chapter 4 of Somaliland’s constitution that runs from Article 97-106 establishes the judicial arm of the Government. The provision of the above accords every citizen a right to institute a court action to enforce the constitution. The forum for such enforcement is the Courts. This will give the Judiciary an important role in determining the extent of compliance with the Constitution & compelling compliance by issuing the necessary orders.
Chapter 4 confirms that the powers exercised by the Judiciary are in itself sovereign powers delegated to it by and exercised on behalf of the people. The Judiciary operating on this foundation will be emboldened to assert itself as a representative of the interests of the citizenry no less than would be claimed by the Legislature and the Executive who would otherwise claim superiority on account of electoral mandate.
The meaning of this is that the authority that the Judiciary wields is sovereign authority on behalf of the people and is to be used to serve the citizenry. One can therefore see a responsive and people –friendly Courts.
Piecemeal reforms required to make Judiciary at par with other arms of the state.
Some of the reforms required however are first & foremost the establishment of a Judicial Fund that is mandated by the constitution to relieve the Judiciary from financial emasculation by the Executive. One can then see a Judiciary which will bear the responsibility of generating and managing its own budgets and setting its own financial priorities to realize operational efficiency in delivery of justice for the citizen. In these sense a major victory would be scored for the Judiciary in the sense that while it looks at the other arms of the Government with the intention of checking them, it is the Judiciary that would be liberated relatively to where it can avoid all these problems that it is experiencing today.
Secondly, Judiciary is supposed to be emboldened through specific prescriptions & mandates in the performance of its duties. Provision specifying the principles by which the Judiciary is to be guided in determination of disputes before it, is to be entrenched in the constitution.
The main principle in majority of mature democracies is that Courts must dispense justice speedily 7 without undue regard to technicalities. In additional, the Judiciary is expected to pay no regard to an individual’s status. Once these principles are ingrained in the procedures & attitudes of our judicial officials, the Judiciary shall be really a people’s institution. The citizens & other litigants can reasonably look forward to the Courts to render substantive justice to all.
The third reform pillar is that if the requirement that the appointment of Judges be preceded by approval of House of Representatives were to be approached with the proper motive & handled competently, then judicial officials appointed as a result of that process will enjoy the best confidence of the public and the other arms of the Government. Somaliland then stands to boast of a Judiciary whose competence is beyond doubt.
This will only work best to increase public confidence & belief in the quality of service that the Judiciary shall offer.
The way forward
Majority of the Articles in Somaliland’s constitution are not operative because there are no statutes to implement them. Whilst the constitution is homegrown, Acts of parliament implementing it are carried from the former Republic of Somalia upon the dissolution of the union. In my view, piecemeal constitutional reforms are to be introduced to give Judiciary supervisory powers in ensuring that the constitution is implemented accordingly. Failure by Legislature to pass the legislations required to complete the implementation of the constitution & the setting up of all attendant institutions could be challenged by the citizen in the High Court.
The Courts would then issue an order to parliament to do so within a prescribed period failing which the order would be transmitted to the President to dissolve the parliament. Through these procedures & systems the Judiciary is made the people’s watchdog to ensure that the constitution is implemented, and with promptitude. In these sense, the Judiciary, again is dully recognized as the protector of the constitution and the end of judges’ airing their grievances at public forums through calling press conferences.
The author Osman A.M.is a Kenyan trained lawyer based in Hargeisa Somaliland and writer for somalilandsun