SomalilandLaw.com Comments on Somaliland Legal News: August 2006                                

 

Somaliland New Ministerial Appointments (6 August 2006)

 

On 6 August 2006, President Rayaale announced the dismissal of many ministers and the re-appointment of some to other ministerial posts. A prominent and much commented on dismissal was that of the Foreign Affairs Minister, and a star in the cabinet, the honourable Edna Adan.  But the legal issue that caught our eye was the recent radio interview reports in which President Rayaale opined that that the five or six ministers who were moved from their ministerial appointments to new ones need not be submitted to the House of Representatives for confirmation of their new appointments.  It is not clear what the legal basis of this argument is, but, we guess that it might be that as the original appointments as ministers were approved by the House, the ministers can then be transferred to other ministerial portfolios without the House considering their suitability again.

 

When looking at the US Senate’s role in confirming presidential appointments, the eminent US Constitution commentator, Alexander Hamilton, wrote that the purpose of such a power was that:

 

“… the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." (Federalist No: 76)

 

This is essentially the same reason why also in Somaliland, a very limited number of very senior appointments (in contrast to the US, where there are thousand of appointments requiring Senate approval) are also subject to confirmation by the House of Representatives.  Ministers and Deputy Ministers are at the top of this list as set out in Articles 53(1) and 94(1), but the President only needs confirmation of their appointments and not their dismissal.  Significantly, the Constitution does not give the President power to transfer such appointees to similar other posts, after their confirmation by the House, as that would negate the role of the House. Rule 43 of the House Rules sets out the procedure for the confirmation of such appointments and states that each appointment shall be voted upon separately after the House has considered the qualifications of the nominee and his suitability for the office.   Such a nominee can not hold office in a temporary capacity for more than three months whilst awaiting confirmation (Article 114(3) of the Constitution) and has to be sworn into office within 30 days of his confirmation (see Article 94(3)). 

 

As the nomination and appointment is to a specific office of Minister (or Deputy Minister) in charge of one or more ministries (see Article 94(6)), then the House of Representatives’ confirmation and assessment of suitability is in respect of that office and none other.  Even if a President considers Ministerial posts as generic posts in which anyone can hold any portfolio at any time, he does not have the power to simply re-shuffle ministers in the same way that prime ministers in parliamentary systems can.  The reason is that in parliamentary systems, the oversight checks of parliament over the cabinet appointments works through votes of confidence for or against the whole cabinet or government, whilst in a presidential system, where the President is elected for a fixed term (which also extends to the whatever government he appoints),  the checking mechanism is in relation to individual appointments.  That is why Alexander Hamilton waxed lyrically about this limitation of presidential power to appoint whoever he wants to.

 

In the recent ministerial appointments on 6 August 2006, the President appointed the following ministers and deputy ministers to different ministerial posts:

 

From the House of Representatives’ point of view, as the President has unlimited power to dismiss any minister/deputy minister, the termination of, say,  the Minister of Resettlement’s appointment is entirely up to the President.  However, once that discretion is exercised by the President, a vacancy arose immediately at the office of Minister of Resettlement and the new presidential nominee, whoever he is, has to be confirmed by the House of Representatives.  If the nominee turns out to be a former Minister whose previous appointment was terminated by the President, as in this case, the House will then has to consider afresh whether the nominee is suitable for this new post in the same way that it would in respect of any other nominee.  

 

Unless the Constitution is changed to allow the President the right to transfer and re-shuffle confirmed appointments, at will, the position remains thus – each single transfer involves, in effect, a termination of previously confirmed appointment and a nomination to a new office.   Any other interpretation will mean that there is nothing stopping the President from “transferring” the Auditor General to a vacant post of an Attorney General, or for that matter, to a post of a Deputy Minister, on the basis that he was confirmed once in his original post!  The President can of course just do that in the large number of other senior public posts which do not require any confirmation by the House.

 

Some members of the opposition controlled House of Representatives have already complained that few ministerial appointments have not been submitted to them for confirmation within the three month constitutional time limit under Article 114(3) and any controversy over these new re-appointments is likely to worsen the relationship of the presidency and the House.

 

 

www.somalilandlaw.com  August 2006 Legal News Commentaries 28/08/06

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