Authored By: Bashir Abdulkadir Awed
Abstract
Somalia’s journey toward democratic governance remains one of the most complex legal and political transitions in the Horn of Africa. While the adoption of a Provisional Constitution in 2012 marked a turning point, significant legal and institutional challenges continue to affect the credibility, fairness, and inclusiveness of electoral processes. This article critically examines Somalia’s electoral legal framework, focusing on constitutional uncertainty, disputes over federal and state powers, and the use of the controversial 4.5 clan power-sharing model.
It identifies major gaps in electoral law and governance, including the absence of a permanent constitution, a fragile judiciary, and the lack of enforcement mechanisms. Drawing on comparative post-conflict transitions and international legal standards, the article proposes specific reforms to enhance electoral integrity, institutional independence, and political inclusivity. The aim is to show that, despite formidable obstacles, Somalia’s democratic transition holds promise if underpinned by robust legal reform and political consensus.
Brief Background About Somalia
Somalia, a country located in the Horn of Africa, known for its strategic geographic position, diverse cultural heritage, and complex historical trajectory. It Bordered by Djibouti, Ethiopia, and Kenya, it boasts Africa’s longest coastline, which has historically served as a vital link for trade with the Middle East and East Africa.
However, the Horn of African nation, is also defined by its significant challenges, including a history of civil conflict, clan dynamics, and ongoing humanitarian crises that continue to impact its development and recovery in many fronts (Sarah Sunderhaus, 2014).
Introduction
In the aftermath of state collapse and prolonged civil conflict in 1991, the Horn of African nation has been undergoing a fragile process of national reconstruction, driven in part by aspirations toward democratic governance. Elections are a fundamental marker of democratic legitimacy, yet Somalia remains locked in a transitional phase, grappling with unresolved constitutional questions, federal fragmentation, and inconsistent legal practices surrounding electoral processes.
Moreover, one of the key components of Somalia’s political settlement in the third republic is to organize an election every four years. ere were broad agreements on the rules of the indirect elections in 2000, 2004, 2009, 2012 and 2017 and certainly beyond.
For starters, term extension was not allowed. As the country was in a post-conflict environment, if direct elections could not be organized at the end of the mandate, the stakeholders negotiated and agreed on a different dispensation process.
Thus, during each cycle, efforts were made to improve the process, and every attempt was made to make it acceptable to the broadest section of stakeholders. Each election cycle produced a new president and parliamentary leadership, as argued by (Heritage Institute, 2021).
The adoption of the Provisional Constitution (2012 )was meant to serve as a temporary legal framework to guide Somalia toward a more stable, inclusive political order. However, over a decade later, the legal architecture for democratic elections remains deeply flawed and incomplete.
The country has experienced multiple indirect electoral cycles based on clan representation rather than universal suffrage. These cycles have frequently been marred by delays, disputes, and procedural uncertainties. The 4.5 clan-based power-sharing formula, while initially intended to foster reconciliation, has entrenched identity-based politics and undermined the prospects of equal political participation. Meanwhile, the National Independent Electoral Commission (NIEC), established to administer elections, lacks the legal authority and institutional independence to function as an impartial arbiter of electoral integrity.
The Heightening of these challenges is the incomplete constitutional review process, which has left key governance issues including the delineation of federal and state powers open to conflicting interpretation.
This article examines the legal foundations and obstacles impeding Somalia’s democratic transition, with a particular focus on electoral law and other related issues. It argues that the absence of a coherent and binding legal framework has rendered Somalia’s electoral processes vulnerable to political manipulation and fragmentation. Through a combination of doctrinal analysis, comparative reference, and reform proposals, the article identifies key legal interventions that could support the establishment of a democratic system based on the rule of law, equal representation, and political accountability, and inclusivity.
Country’s Provisional Constitution: Legal Foundation of Somalia’s Electoral System
The Provisional Constitution of Somalia that was adopted in 2012, represents an attempt to provide a foundational legal framework for state-building and democratic governance. It outlines principles for federalism, separation of powers, and human rights, and affirms the right of every Somali citizen to participate in public affairs.
On Article 22(2) it guarantees the right to vote and be elected, while Article 47 states that regulations concerning political parties, elections, and the NIEC shall be defined in special laws enacted by the Federal Parliament.
Nonetheless, the Constitution remains incomplete and provisional. Crucial articles, other academic writings particularly those concerning the electoral process, remain vaguely worded or entirely undeveloped in many parties of underdeveloped countries (Abdiwahab Ali, 2014).
According to the Provisional Constitution (2012), the NIEC is established in Article 111(G) is the central body tasked with organizing and supervising elections.
However, it operates without a comprehensive legal framework defining its powers, structure, or funding. In practice, its ability to manage elections is often contested by Federal Member States (FMSs), many of which seek greater autonomy over their own electoral processes. This lack of legislative clarity reflects a deeper legal crisis: Somalia lacks a permanent electoral law that defines the roles and responsibilities of federal and regional institutions.
Furthermore, the electoral system has operated without a clear legal mandate for universal suffrage. Instead, clan elders have continued to select members of parliament under the 4.5 power-sharing model. This system, though historically useful in fostering reconciliation, lacks a basis in statutory or constitutional law, and perpetuates exclusion by marginalizing women, youth, and minority clans.
Legal Challenges Facing Somalia’s Democratic Transition
Absence of a Final, Permanent Constitution
The absence of a finalized constitution is perhaps the most significant legal obstacle to democratic transition in Somalia. The ongoing constitutional review process, delayed for years due to political disagreements, has left the country in a state of legal limbo.
Electoral provisions remain provisional in the current constitution of 2012, although it has been reviewed and changed despondently by the current government led by President Hassan Sheikh Mohmaoud, therefore, many critical issues such as the delineation of power between federal and state governments are unresolved.
In addition to that, this uncertainty undermines legal predictability and allows political actors to exploit grey areas for partisan advantage.
Without a final constitution, legal institutions lack clear mandates. The Independent Electoral body operates under ambiguous authority, and courts struggle to adjudicate electoral disputes without established constitutional principles, given that the constitutional court is not yet in place, that could determine disputes related to elections.
Accordingly, legal disputes often escalate into political crises, as evidenced in the 2020–2021 standoff between the federal government and several FMSs over the electoral timeline and procedures, as he outlined in his writing by (Abdiwahab Ali, 2014).
The 4.5 Clan-Based Power-Sharing Formula: Another Political Mistake
The country’s 4.5 clan-based formula, while originally intended to foster inclusiveness and reconciliation in a fractured society, has become a major impediment to democratic reform.
It divides parliamentary seats among Somalia’s major clans, assigning a half-share to minority groups. Though pragmatic during the early transitional period, it institutionalizes clan identity as the basis for political representation, thereby undermining the principles of equality and universal suffrage.
This arrangement has no constitutional foundation and has never been codified in law. Its continued use represents a failure to transition from customary arrangements to formal legal norms. Moreover, it limits participation by groups not affiliated with dominant clans, and it structurally disadvantages women, who often lack representation within traditional clan leadership structures.
Federal-State Continued Power Struggles
The federal system is marked by unclear divisions of power between the central government and FMSs. This ambiguity has led to repeated disputes over who has the legal authority to conduct and oversee elections. In practice, this has resulted in parallel election processes, boycotts, and delays. For example, in the lead-up to the 2021 presidential election, several FMSs refused to recognize the federal electoral plan, leading to an extended political impasse.
The Constitution does not clearly define the respective powers of the FGS and FMSs concerning electoral management. As a result, electoral arrangements are often negotiated through temporary political agreements rather than established legal rules. This undermines the rule of law and creates space for manipulation by powerful actors.
The legal and institutional frameworks for elections are weak and underdeveloped. The NIEC lacks the independence, technical capacity, and financial resources to conduct free and fair elections. It is frequently accused of bias and is vulnerable to political pressure. Similarly, the judiciary is under-resourced and lacks independence, with judges often appointed based on political loyalty rather than merit.
There is no specialized court or legal mechanism for resolving electoral disputes. Legal challenges to election results are rare, not because elections are flawless, but because litigants have little faith in judicial remedies. The absence of effective legal redress mechanisms contributes to a climate of impunity and weakens public confidence in democratic processes.
Human Rights and Political Inclusion of Somalia’s electoral processes have consistently fallen short of international human rights standards. Legal barriers to participation remain high, particularly for women, youth, and marginalized communities.
Notwithstanding the rhetorical commitments to inclusivity, there is no legal requirement for gender quotas or affirmative action in electoral law. Women candidates often face intimidation, lack of funding, and social stigma, and are significantly underrepresented in elected offices.
Furthermore, the legal framework does not guarantee freedom of the press or ensure access to impartial media coverage during election campaigns. Campaign finance is largely unregulated, allowing wealth and patronage to dominate the political landscape. These legal gaps perpetuate inequality and exclude large segments of society from meaningful political participation.
Legal Opportunities for Reforms, Road for Solid Governance
The legal opportunities for real institutional reforms, thus clear and real roadmap for solid governance in the country, should take the following steps:
▪ Finalizing the Constitution
The constitutional review process is essential for creating a stable legal environment for democratic governance. The new constitution should clearly define the roles of the FGS and FMSs in the electoral process, enshrine principles of universal suffrage, and establish the independence of electoral bodies. Public consultation and inclusive participation in the constitutional process can help build legitimacy and national consensus.
▪ Enacting a Comprehensive Electoral Law
The country must adopt a unified, permanent electoral law that replaces ad hoc political agreements with binding legal norms. This law should clearly define electoral timelines, eligibility criteria, voter registration procedures, campaign regulations, and dispute resolution mechanisms. It must also clarify the division of responsibilities between the federal and state governments to avoid future jurisdictional conflicts.
▪ Strengthening the Independent Electoral Commission, Judiciary
Institutional reforms are necessary to ensure that the NIEC operates as a genuinely independent body. Legislation should mandate transparency in appointments, secure adequate funding, and establish oversight mechanisms to prevent political interference. Likewise, the judiciary must be reformed to enhance its independence, competence, and accessibility.
Thus, a dedicated electoral tribunal should be established to adjudicate electoral disputes in a timely and impartial manner.
▪ Enhancing Political, Electoral Inclusion
Here, the legal reforms should mandate gender quotas and promote the inclusion of youth and marginalized communities. Electoral laws must criminalize voter intimidation and provide public financing for female and minority candidates. Civic education and public awareness campaigns should be legally mandated to foster informed political participation.
By leveraging International Support International organizations can play a critical role in supporting legal reform. The United Nations, African Union, and European Union have already provided technical assistance, monitoring, and funding. Legal reforms should institutionalize such support through formal partnerships that ensure alignment with international human rights and democratic standards.
Comparative Lessons from Post-Conflict States and Post-conflict transitions: Case Studies Rwanda, Iraq, and South Africa
My homeland, Somalia has got to get or offer valuable lessons for Somalia from the said countries mentioned above.
In reference to (Abdulai, G., & Crawford, G. (2010). For instance, South Africa’s constitution making process was inclusive and transparent, resulting in a legal framework that enjoys broad legitimacy. Iraq, despite ongoing challenges, implemented a proportional representation electoral system and established an independent electoral commission through law. Rwanda enacted legal reforms to promote national unity and enforce gender quotas, resulting in one of the highest rates of female parliamentary representation in the world (Acemoglu, Daron, and James A. Robinson. 2001)
Somalia can learn from these experiences by emphasizing legal clarity, inclusivity, and institutional integrity. While each context is unique, these cases demonstrate that legal reforms can facilitate reconciliation and democratic consolidation even in deeply divided societies.
Lawmakers Endorsement of Somalia’s Electoral Law
Based on Article 63(b) of the Provisional Constitution about the legislative powers of the house of the people, the federal lawmakers collectively endorsed the new electoral law of the general elections in the country in November 2024, that is the final draft of the new document proposed by the minister of interior.
During the proceeding, at the floor of the house of the people the minister for interior Ali Yusuf Ali, acknowledged such a move for direct elections in more than 50 years, he said I quote: “This law will give a voice to the people of Somalia, to elect their representatives at District, State and Federal levels. So I thank you for returning the power of choice to the people”.
Conclusion
In Conclusion, I submit that Somalia’s democratic transition is as much a legal challenge as it is a political one. The absence of a finalized constitution, reliance on clan-based power-sharing, weak institutions, and exclusionary practices have all contributed to the fragility of its electoral processes.
However, these challenges also present opportunities to move ahead for the future. In the meantime, by finalizing the constitution, enacting comprehensive electoral laws, and investing in independent institutions, Somalia can lay the legal groundwork for democratic stability.
Legal reform must be participatory, inclusive, and anchored in both domestic realities and international standards. The transition from clan-based representation to universal suffrage will not be easy, but it is both necessary and achievable. With concerted effort, political will, and support from the international community, Somalia can transform its legal landscape and realize its democratic aspirations.
Additionally, the full-scale Somalia elections planned for the next year 2026, it will be impossible to take place in the current political impasse among key stakeholders between the regional peripheries, the opposition wing, and federal government in Mogadishu.
However, a lack of consensus is evident among the Somali elites, and peoples on which option the country should adopt in 2026 from among the available alternatives is not yet available and clear for everyone cornered including the international community.
Like it happened previously in the country, a national consultative forum was inaugurated, which paved the way for regional-level consultations that are expected to facilitate discussion on the best possible election options in the absence of a vote process based on a one-person-one vote approach, but now the situation is far more different and messier than before.
Moreover, given the predominant challenges facing the country, most people including myself are of the opinion that it is not possible or even practical in the given time frame ahead of next year’s general elections. Rather, they prefer a more inclusive, legitimate polling system in the country, that is very different from the one used in the last 15 years.
In addition to that, voices of discontent still abound in many parts of the country even before the talks begin, thus the road for 2026 general elections is miserably along for those concerned.
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