Authoritarian Legalism in Somalia, Part II: Four Days to Capture the Court

By Isha Qarsoon

Part I of this series, “Legal Form, Coercive Substance: Somalia’s Road to 2027” (WardheerNews, October 22), argued that Hassan Sheikh Mohamud is building authoritarian legalism, a system of governance that uses lawmaking, legal interpretation and selective enforcement to keep incumbents in power and weaken the institutions that can hold them to account. That essay ended by asking whether the Supreme Court, then hearing Sharif Sheikh Ahmed’s petition, could restrain the government. Two weeks later, the president removed the Chief Justice before the Court ruled. The Court ruled against him anyway, and two days later he swore in a Chief Justice of his own.

On the evening of November 4, the president removed Chief Justice Baashe Yusuf Ahmed and appointed Ibrahim Idle Suleiman, his special legal adviser and a member of his Justice and Solidarity Party (JSP). The presidency cited complaints from judges and legal professionals but did not say what they were. It called the change part of a broad judicial reform, the justification authoritarian governments give when they reshape courts to serve them. The Court was reportedly days from ruling.

On November 5 the Court declared the removal void, saying it was meant to interfere with the pending case. The same day, five judges of its Constitutional Division ruled that the terms of Parliament, the federal government and the president had expired, and ordered elections within 90 days. Defence Minister Ahmed Moallim Fiqi accused the judges of acting as both party and judge and warned that the government would counter any attack against it. The next day he called the ruling an agenda “arrived at in the Abu Dhabi meeting” and carried out by “mercenaries” in the judiciary, repeating the intelligence chief’s unproven claim that opposition leaders had met in the UAE to plan a rebellion. A defence minister who answers a court by accusing its judges of serving a foreign power, and promising a response, is intimidating them.

On November 6 the Office of the State Attorney General (OSAG) issued a “position” on “the document said to be the decision” of the Court, declared it of no legal effect and promised legal action without naming a court. OSAG was the government’s lawyer in the case. It has no more power over the judgment than Sharif’s counsel, and the only court that could hear its challenge is the one whose judgment it had just declared void; the law makes that judgment final. Whether the declaration reflects deference to the president or ignorance of the law, it has no legal effect. What it does is leave officials to choose between the Court and the government, an invitation to chaos.

On November 7 the president finished what he began on November 4. At Villa Somalia, a member of Parliament administered the oath to Suleiman, with the Speaker of the House of the People, the Upper House’s first deputy speaker, the Prime Minister and the Justice Minister in attendance. A judge outside the five who signed the ruling, Cabdalle Xaaji Maxamed, later handed him the office. Whatever legitimacy the Court had built as a check on the government is gone: the branch charged with safeguarding the rule of law is now led by a Chief Justice installed outside the constitution.

The Removal and the Oath

Under the 2026 text, which the president signed in March, removing the Chief Justice requires a finding of incapacity or misconduct, a complaint accepted by two-thirds of the Judicial Service Commission, and a secret-ballot vote in both houses of Parliament (Article 138). The president has no part in any of these steps. His removal of Baashe is an example of what Part I of this series described as authoritarian legalism ignoring the laws in its way.

He also bypassed the appointment procedure. The Commission must nominate a Chief Justice, and each house of Parliament must approve the nominee by vote, before the president can issue a decree (Article 135). Neither happened before the oath. The presence of the Speakers at the swearing-in was not approval. The constitution requires a vote of each house, not the attendance of its leaders. Again, the law did not allow what the president wanted, so he ignored it.

The government may argue that the Commission cannot act, since its appointed members still await Parliament’s approval and the president’s own decree. But an incomplete Commission does not hand its powers to the president. And the judgment voided every act federal institutions took after their terms expired, the president’s on May 15, which covers both the removal and the oath.

OSAG’s November complaints that the Court decided without a public hearing and left issues unaddressed have some legal basis, but the remedy is a request to the same court or a complaint to the Commission, not a declaration of annulment by the government’s lawyer. Its complaint that the Chief Justice did not preside fails: the law lets the deputy preside, and had Baashe presided a day after his purported removal, the government would have attacked the judgment as signed by a dismissed judge.

These objections came after the removal they might be used to justify. The president never said what his complaints were or sent them to the Commission.

Suleiman was chief justice from 2016 until 2018, when President Farmaajo removed him by decree, over his protest that proper procedure had not been followed, and appointed Baashe the same way. After returning to power in 2022, Hassan Sheikh made Suleiman his special legal adviser, and Garowe Online reports that he also served as the JSP’s legal affairs secretary. On the night of his appointment, a video circulated that appeared to show him at the JSP office in Guriceel urging supporters to vote for the party in Galmudug. He now claims to head the court that rules on the government he advised and the president whose party he serves.

Part I of this series described the JSP’s hold on the assemblies of South West, Galmudug and Hirshabelle, which choose the state presidents who shape the 2027 vote. With Suleiman in the Chief Justice’s office, the JSP now controls the supervision of all courts and the prosecution service. Because the Chief Justice alone can convene the Commission, holds its tie-breaking vote, and sits with four members nominated by the ministry and approved by the cabinet, the JSP also controls the body that proposes the appointment, discipline and removal of judges. Suleiman controls when that body meets, including to consider his own removal.

Baashe rejected his removal, and the other judges publicly defended him. After the ruling, troops deployed around the Court and Baashe was reportedly ordered to leave. In an appeal to foreign missions, the United Nations and the African Union, he said the government had withdrawn the drivers and guards of all the Supreme Court’s judges within hours of the judgment. He also said security vehicles had surrounded his residence, NISA agents had followed him out of the Halane compound, and the five judges who signed the judgment had been barred from leaving the country. He wrote from a location he would not disclose. The judges who ruled against the government lost the state’s protection, and their chief turned to foreign governments for it.

What the Court Decided

Sharif’s petition asked whether Parliament followed the amendment procedure of the 2012 Provisional Constitution, and whether the extension of federal terms from four to five years applied to officials already in office. On the first, the government never argued that Parliament had followed the 2012 amendment procedure. It argued only that Sharif lacked standing, that the Court lacked jurisdiction, and that a constitution cannot be annulled, the last of which would put any amendment beyond review, however it was adopted. The Court accepted the government’s first argument and ruled that Sharif lacked standing.

On the second, the Court ruled that when an amendment changes a term without saying whether it applies to incumbents, they keep the term they were elected to serve. The 2026 text is silent, so the terms of Parliament and the government expired on April 14, 2026, and the president’s on May 15. The Court voided acts taken since, limited the government to caretaker business, and gave the parties 30 days to agree on an electoral process and 90 days to hold the vote.

Early reports said the Court annulled the amendments. It did not. Finding no admissible challenge before it, it treated the 2026 Constitution as in force and ruled only that the text does not extend incumbents’ terms.

The Standing Problem

The Court erred in one respect. It denied Sharif standing under Article 86, which governs challenges to ordinary laws, and ignored the 2016 Constitutional Court law, which lets anyone bring a public-interest constitutional case. The error probably did not change the result, because the Court faced a deeper problem of jurisdiction. The 2012 Provisional Constitution assigned constitutional review to a Constitutional Court that was never established, and the 2016 law did not pass that court’s powers to the Supreme Court.

The court found jurisdiction in Article 191(3) of the 2026 text. Had the Court found that text unlawfully adopted, it would have voided the provision that allowed it to make the finding. Declining the case would have left the amendments beyond any court’s review. Denying standing let the Court avoid both. If it took that narrow route to avoid the disorder of voiding the constitution, it did not escape disorder. The president removed the Chief Justice before the Court ruled. When the Court ruled against him anyway, the government declared its judgment void and swore in a replacement: disorder dressed in legal form.

Fourteen Years Without a Constitutional Court

Had the Constitutional Court that the 2012 text requires existed before March 2026, it could have judged the amendments under that text. Parliament passed the law creating it in 2016, near the end of Hassan Sheikh’s first term, but the two political branches failed to constitute it. He has been president for nearly nine of those fourteen years, long enough to have built it, but did not.

The Judicial Service Commission fared no better. First provided for in the 2004 Transitional Federal Charter as the Judicial Service Council, it never took root. The 2012 Provisional Constitution renamed it the Judicial Service Commission. In March 2015 Hassan Sheikh dissolved the Commission constituted under a 2014 law, saying its members had been improperly selected; Chief Justice Aidid Abdullahi Ilka-Hanaf challenged the decree, and Hassan Sheikh removed him the following year. In October 2022 he dissolved another, constituted under Farmaajo, citing the Upper House’s objections. The 2026 text renamed it again, as the Supreme Judicial Council, and in July the cabinet approved four members nominated by the ministry. Twenty-two years after the Charter, the Commission still exists only on paper. Every government shares that failure, including Sharif’s, though his and Abdullahi Yusuf’s held little beyond Baidoa or parts of Mogadishu.

Lack of capacity does not explain this; governments able to organize elections and create ministries could have built both institutions. Their absence served those in power. Without a Constitutional Court, disputes over constitutional authority, including term limits, were settled by negotiation. Without a working Commission, which proposes the appointment, discipline and removal of all judges, nothing stops a president from shaping the courts by decree, as Hassan Sheikh did on November 4.

Since Arta in 2000, the elites who led reconstruction treated public institutions as positions to divide and hold, and because donors funded much of the state, controlling the government meant controlling its resources. An independent court or commission threatened that control, so successive governments left them unbuilt or dissolved them. With no one to enforce the rules for transferring power, leaders ignored them, and every transition had to be negotiated.

Conclusion

The Court ruled that the terms of Parliament, the government and the president have expired. It did not decide whether the 2026 amendments were lawfully adopted, and no court now can. The government answered the judgment by having its lawyer declare it void and swearing in a new Chief Justice. The constitution’s rules protect judges only when someone enforces them. In Somalia no one will: in 2018 Suleiman called his own removal by decree unlawful, and it stood.

Under the rule of law, opponents can use the law against the state. Sharif tried, and as the Court prepared to rule, the president removed its Chief Justice. Hassan Sheikh’s road to 2027 requires a court that will not stand in the way, and he has sworn in his party’s lawyer to lead it.

A state becomes constitutional when its institutions can exercise their authority without the permission of those they are meant to restrain. On November 4, the president withdrew that permission. On November 5, five judges acted without it. On November 7, he swore in a Chief Justice of his own choosing. Which becomes the norm will decide what kind of state Somalia has built.

Isha Qarsoon
Email: [email protected]
——-
Isha Qarsoon is a platform for Somali governance, law, and political science.

The post Authoritarian Legalism in Somalia, Part II: Four Days to Capture the Court appeared first on WardheerNews.