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“The Supreme Court must remain a place where disputes are settled under the law, not another arena for political rivalry.” By Avv. Abdiaziz Nor Dabeyl
Introduction
Modern states divide authority among the legislature, executive and judiciary to protect constitutional order and prevent the concentration of power. Article 3(4) of Somalia’s 2026 Constitution recognises this separation, while Article 127 protects judicial independence.
Events on 4 and 5 November 2026 pose a difficult question: how can courts resolve disputes involving the very institutions whose powers they must review?
The Federal Supreme Court is Somalia’s highest judicial institution. Article 130 establishes its authority, including jurisdiction over administrative complaints, federal appointments and removals, electoral disputes and orders requiring institutions to act lawfully. Its decisions are intended to bind the parties concerned.
Somalia has not yet established the Constitutional Court envisaged by Article 131. Until then, Article 191(3) assigns its functions to the Supreme Court. The Higher Judicial Council, established under Articles 144–147, has a separate responsibility to protect judicial independence and oversee judicial administration, including proposals for judicial appointments and removals.
These institutional distinctions are central to the present dispute.
On 11 October 2026, former President Sharif Sheikh Ahmed brought a constitutional challenge concerning amendments to the 2012 Provisional Constitution and their consequences for federal mandates. The Federal Government, represented by the Office of State Attorney General, objected to the claimant’s legal standing and the Court’s jurisdiction.
On 5 November, a five-judge Constitutional Chamber addressed the claims separately. It rejected the challenge to the amendment process because it found Sharif lacked standing to contest that parliamentary legislation. It nevertheless considered the consequences of the amendments for officials who had entered office under the previous constitutional rules.
The Chamber ruled that Parliament’s two Houses and the Federal Government had reached the end of their mandates on 14 April 2026, while the President’s mandate ended on 15 May. It concluded that a newly introduced five-year term did not automatically extend existing four-year mandates without an express transitional provision.
The Court further held that subsequent exercises of constitutional authority were unlawful, limiting the Government to routine caretaker functions.
The judges directed political stakeholders to agree on an inclusive electoral framework within 30 days and hold elections within 90 days. Their ruling did not invalidate the 2026 Constitution itself; it interpreted the effect of its term provisions on those already serving.
The Government disputes both the ruling and the procedure leading to it. In a statement on 6 November, the State Attorney General’s Office rejected the decision as legally ineffective.
It questioned jurisdiction and standing, argued that preliminary objections had not been properly resolved, and challenged the panel’s composition because the Chief Justice had not presided. It also alleged that the Court introduced an issue outside the original petition and failed to provide the parties an adequate hearing.
These objections warrant examination on their legal merits, rather than dismissal as political opposition to an unfavourable ruling.
Equally, the ruling refers to the Government’s objections, and the original petition expressly raised the extension of mandates. Whether the proceedings satisfied applicable procedural requirements remains a contested question, distinct from the merits of the constitutional interpretation.
At the heart of the substantive dispute is non-retroactivity, often expressed as Lex prospicit, non respicit: the law looks forward, not backward.
The principle promotes legal certainty by discouraging new rules from altering the consequences of earlier events. Yet its application to ongoing public mandates is not always straightforward.
Articles 50 and 112 of the 2026 Constitution provide for five-year terms, including a presidential term measured from the oath of office. Neither explicitly states that a longer term applies to those already holding office when the Constitution took effect.
Article 190(1) provides for commencement 30 days after publication in the Official Bulletin. According to the publication dates cited in the case, the Constitution took effect on 15 April 2026.
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That chronology creates an important distinction. Under the Court’s reasoning, parliamentary mandates had ended the previous day; the President, whose term began with the 2022 oath, was still in office. Extending that presidential mandate to five years would alter the legal implications of an oath taken under the earlier framework.
Article 191 retains existing laws pending review and allows six months to align conflicting administrative measures with the new Constitution. It does not expressly extend existing mandates.
This supports the interpretation that new terms should generally apply to future officeholders unless a clear transitional rule provides otherwise.
There is, however, another arguable interpretation: a new constitution can regulate the future effects of an ongoing legal relationship without necessarily operating retrospectively.
The decisive question is therefore not simply whether retroactivity is prohibited, but what the constitutional text intended for existing officeholders and how any ambiguity should be resolved.
The confrontation intensified on 4 November when President Hassan Sheikh Mohamud announced the removal of Chief Justice Baashe Yusuf Ahmed and the appointment of Ibrahim Idle Suleiman, citing complaints about judicial administration and the need for reform.
Articles 135 and 138 distinguish judicial appointments from removals.
Article 135 requires a proposal from the Higher Judicial Council and parliamentary approval before the President formalises the Chief Justice’s appointment.
Under Article 138(4), a removal complaint must pass through the Council, obtain a two-thirds majority there and be transmitted to parliamentary leaders. Removal then requires a secret-ballot majority of the total membership of each House.
On 5 November, the Supreme Court separately rejected the Chief Justice’s dismissal, declaring it invalid and alleging interference with the pending constitutional case.
The Presidency’s stated reform rationale and the Court’s allegation of interference are competing accounts. Motive should not be treated as established merely because one institution alleges it.
Whatever the political circumstances, constitutional procedures for judicial appointments and removals must be respected.
The central concern is not whether an individual Chief Justice should remain in office, but whether judicial independence can survive a dispute involving those empowered to appoint judges.
The present crisis tests both judicial authority and confidence in fair procedure.
A court’s independence does not exempt its decisions from reasoned legal criticism. Equally, disagreement with a judgment does not justify bypassing established constitutional safeguards.
Somalia should establish its Constitutional Court, clarify transitional mandates, guarantee due process and encourage inclusive electoral dialogue.
The Federal Government and opposition must address their disagreements through lawful institutions rather than political pressure.
The Supreme Court must remain a place where disputes are settled under the law, not another arena for political rivalry.
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About the Author
Avv. Abdiaziz Nor Dabeyl is a law graduate, Legal Analyst and blogger with an interest in legal affairs, constitutional governance, and the rule of law.
**The views expressed in this article are those of the author and do not necessarily reflect the editorial position of Dawan Africa.