Legal brief on the suspension of the Voter Registration List
from the University of Hargeisa in Somaliland, an LL.M (Master of Laws) from the University of Pretoria in
South Africa, and is currently a Ph.D. candidate
1. Introduction
The right of all adult citizens to participate in the affairs of their government is one of the keystones of democracy.[1] Perhaps the most primary form of participation is voting in free and fair elections. For citizens to exercise their democratic right to vote there must be a comprehensive and inclusive electoral register, also called a voters list; and this must be carefully maintained to ensure that each eligible citizen is registered to vote once and only once.[2] A voters list makes it possible to separate two of the most important functions of the election authority: verifying voter eligibility and controlling the legitimacy of the balloting process.[3] The list may also be used in voter education, and may be provided to political parties and candidates to aid them in their campaigns. While elections may proceed without it, a voters list offers advantages that readily justify its use.[4]
By confirming that voters have met all eligibility requirements, the voters list helps confer legitimacy in the electoral process.[5] Conversely, the legitimacy of the process will immediately be called into question if there are problems with voter registration, and particularly with the integrity of the voters list. Voter registration therefore is one of the most important tasks of election administration.[6]
An assessment report published by the International Republican Institute in 2005 on the election of the House of Representatives found problems in that election and noted in their report that, "efforts to vote multiple times were common and grew in number throughout Election Day, particularly among young people. IRI observers noted a number of well-organized efforts to move voters between polling stations to facilitate multiple voting. Somaliland electoral law restricts vehicle movement on Election Day only to those authorized by the NEC; in all regions IRI visited, observers spotted large numbers of trucks and other vehicles full of voters." Therefore, according to their report they recommended as follows: a central voter registration is created in Somaliland to ensure that multiple voting is more difficult in future. It is from this background that the international community and the Somaliland National Electoral Commission agreed that they should conduct a voter registration list which is one of their legal mandate as provided by Article 14(9) of Presidential and Local Elections law.[7]
In 2008 the Commission and the international community represented by Interpeace agreed that they should prepare the voter registration list which theoretically will make sure that fair and free elections are held. Beginning in October, 2008, Interpeace collaborated with NEC and the current regime to begin the voter registration process. Due to unforeseen discrepancies and alleged multiple votes in this system, however, the Commission has suspended the voter registration list on the grounds that it is not valid and inaccurate. This paper will explore the legality of the recently announced decision of the NEC to suspend the voter registration list. The paper will examine the legal powers of the Commission to grant said suspension and highlight the electoral laws which are relevant in this circumstance.
2. The legal process of the Voter Registration Act
The Voter Registration Law was first passed in 2007 and was implemented by Presidential Decree No: 207 of 08/07/2007. [8] The NEC and the parties, therefore, proposed amendments to the Law. These were forwarded by the President to the House of Representatives, which approved them on 10 June 2008. The amendments were in the form of 12 Articles which were appended as a Schedule to the 2007 Law.[9] The House of Elders proposed changes to 3 of the Articles, but when the Bill was returned to the Representatives, the latter insisted on passing again, on 21 June 2008, the bill in its original format.[10] The Elders have no power to return a bill to the Representatives more than once, and whilst there were no reports of the Bill being returned to them by the Representatives, the Bill was forwarded to the President and, on 23 June 2008, a presidential decree (signed by the Vice-President, during the President's absence from the country) promulgated the Bill into Law.[11]
3. Harmonization of Voter Registration Act and Presidential and Local Elections Act
It was the Commission who instigated that there ought to be a separate law which harmonizes the Voter Registration Act and Presidential and Local Elections Act. The three political parties agreed with the suggestion and prepared together with the Commission the law of harmonization (xeerka waxkabadalka iyo kaabista xeer Lunber 20). After the Commission and political parties prepared the first draft and agreed upon it, the bill was taken to the cabinet. The president then submitted it to the House of Representatives and the House submitted to Upper House for Approval and finally it was taken back to the president to issue a decree for its enforcement. The bill is still with the president waiting for his signature. Therefore, it does not have legal binding authority.
The proposed bill was not enforced when the Commission announced its suspension of the voter registration list. It is evident that the President signed the Bill on 29 July 2009 while the Commission announced the suspension of the voter registration list on 26 July 2009.[12] As result, this law was ineffective at the time the Commission announced the suspension of the list.
4. Legal powers of the Commission
Unlike other countries there is no separate parliamentary act which extensively portrays the structure and the powers of the Commission. The National Commission has been legalized and established under the Presidential and Local Elections Law. This act outlines the powers and the mandate of the Commission. Article 10 of the Presidential and Local Elections Law which provides the institutional structure of the Commission clearly stipulates the divisions of the Commission and its various offices. [13] The National Commission consists of seven members.[14] The powers of the Commission, as stated under article 14, are outlined as follows:
The Commission shall have the power to set the date of the elections, and inform the President so that he can issue a Decree; set the number and the location of the polling stations of the districts and the regions; appoint, dismiss, or discipline the staff of the central office and those of the electoral districts and the electoral regions; plan the budget for administering the electoral activities; declare the provisional results of the elections of the President and the Vice-President pending their confirmation by the Supreme Court; inspect the polling stations and any other places connected with their duties either randomly or in a planned fashion; adjudicate on the disagreements relating to the elections, which have been forwarded to them by their electoral offices; conduct research into how the country can have polling stations where candidates can compete for votes; register voters before the date of the election.[15]
Those are the powers that the Commission has conferred upon. It is therefore important to address the legal question which relates to the unilateral suspension of the voter registration list by the National Electoral Commission. As it is clear from Article 14 of the Act, the Commission does not have explicit power which gives it the mandate to suspend and invalidate the results which the server provided. Conversely the Commission has an obligation to register all voters one month before the election date. As Article 14 (9) provides, the Commission has the absolute responsibility to conduct the registration of voters one month prior to the election date. If this month expires the Commission automatically loses the power to register the voters. In this case the Commission has a legal justification to suggest with the stakeholder's knowledge that the registration of voters cannot be finalized in the period provided by the law. Therefore, the Commission can suggest that the election take place without a voter registration list, but the Commission cannot suspend the result of the voter registration list unilaterally. Even this list is not precise; the Commission should have consulted with the stakeholders before it unilaterally suspended the voter registration list.
5. Does the Commission have the legal authority to amend or repeal an act of Parliament?
Voter Registration Law was passed in 2007 and amended in 2008 by the parliament and signed by the President. The other question that has arisen is whether the Commission has the legal authority to repeal an act of parliament which provides the voter registration list. It is clear from article 53 of the Constitution of Somaliland that the power to amend and repeal a law rests in the hands of the Parliament. Therefore, the Commission has no legal mandate to suspend a law enacted by Parliament. The Commission did not explicitly repeal this law, but it suspended the result of the voter registration list which this law has been enacted for.
6. Have the agreed upon terms of accepting and issuing the voter registration list been met?
On 27 May 2009 the three political parties and the National Electoral Commission agreed that the voter registration list should be published on 27 July 2009. After the issuing of the voter registration list, the three political parties would have one week to scrutinize and analyze the initial results of the list. On 27 July 5:00 PM Interpeace published the results of the voter registration list in which it suggested that the political parties and the Commission may accept the registered numbers of voters as 1.146 million or develop and extend the repeal period in order to further correct the erroneous figures. Contrary to widespread rumors, the elections in fact cannot legally be held without a voter registration list. That has not been supported by the Commission who, on 27 July 10:00am debated the issue and passed on simple majority 4/3 that it has suspended the voter registration list without justifying whether they have the legal powers to suspend the voter registration list unilaterally.
7. The legality of the suspension of the voter registration list
It is the power of the Constitutional Court of Somaliland to determine the legality and as well the constitutionality of any act taken by parliament, governmental institutions and national commissions including the National Electoral Commission. Because the Constitutional Court is not well functioning, it is imperative to analyze the legality of the suspension of the voter registration list. As mentioned earlier, the Commission has powers and mandates provided by Law No: 20 of the Presidential and Local Elections. Under Article 14 of that Act, the Commission has no explicit power to suspend the result of the voter registration list even if it is erroneous. It would have been rational to consult with the political parties and the donors with this issue before it unilaterally issued the deferral. If they agree that the outcome of the voter registration is inaccurate, the Commission has the power under article 14(9) to argue that the period which is provided by the law is insufficient to either register or correct the results of the voter registration list. With the agreement of the stakeholders, the Commission may have been able to lawfully suspend the results of the voter registration list. But this did not happen. Therefore, the manner in which the voter registration has been suspended is illegal and unconstitutional.
8. Conclusion
It is obvious that the Commission utilized excessive power beyond its legal authority. One of the main objectives of the Constitutional Court is to determine neutrally the legal disputes and constitutional disputes that emerge from the three branches of the state and as well as the national administrative bodies. It is clear; therefore, that the Constitutional Court is not well functioning and its independence is in question. With regard to the issue of the legality of the suspension of the voter registration list, it is evident that the Commission has no such power to suspend the result of the voter registration list even if it is inaccurate. The issue rather would have been to debate and discuss the validity of the results with the stakeholders before issuing a unilateral suspension.
[1] The electoral knowledge network ACE Encyclopedia accessed on 7 August 2009 (www.aceproject.org)
[2] EKN ( 1 n above)
[3] EKN ( 1 n above)
[4] EKN ( 1 n above)
[5] EKN ( 1 n above)
[6] EKN ( 1 n above)
[7] See article 14 (9) of Law No 20 of the presidential and Local Elections 2002
[8] www.somalilandlaw.com (Accessed on 6 August 2009 )
[9] www.somalilandlaw.com (Accessed on 6 August 2009 )
[10] www.somalilandlaw.com (Accessed on 6 August 2009 )
[11] www.somalilandlaw.com (Accessed on 6 August 2009 )
[12] Haatuf News paper Vol: 8 Number 2104 issued on Wednesday 29 July 2009
[13] Article 10: Structure of the Elections Commission. The structure of the offices of the Elections Commission shall be as follows 
[14] Article 11: Elections Commission
1. The Commission shall consist of 7 members who are as follows: a) The Chairman and 6 members. b) The Commission shall elect from among its members the Chairman [16] and the Deputy Chairman. c) The term of office of the Commission is 5 years beginning from the date the House of Representatives approves of its appointment, and the term of office may be renewed. d) Employees of the state, members of Parliament, and members of the council of Ministers [17], members of the armed forces and persons who hold positions in associations/parties [18] cannot become members of the Commission. 2. The Elections Commission shall be appointed[19] by the President of the Republic of Somaliland after he has received the (following) nominations: a) 2 members selected by the House of Elders. b) 2 members selected by the registered opposition associations/parties [20]. c) 3 members selected by the President.
3. The appointment of the Commission shall be approved[21] by the House of Representatives on an absolute majority vote[22] of half of their members plus one, and after the House Internal Affairs Committee has ensured that the appointees fulfill the conditions[23] set out in this Law.
[15] See more article 14 of the Presidential and Local Elections Law
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