ISSUES FOR CONSTITUTIONAL REFORM IN SOMALIA 2 Cheryl SaunderS Co-convenor, ConTransNet 13 JUNE 2018

Distribution of powers: Overview Which powers to which level of government? Framework for the legislative distribution of powers Some examples Distribution of executive powers Distribution of tax powers Revenue redistribution and fiscal equalisation

Which powers for which level of government? Note the principle of subsidiarity Power should be assigned to the lowest level of government at which it can be exercised effectively Factors influencing assignment of powers to the centre “National’ character of power (eg, treaty ratification) Cross-border effects of exercise of a power (eg river pollution) Need for uniformity (eg weights and measures; copyright law) Other? Factors influencing assignment of powers to states: Can a power effectively be exercised within state/regional borders? (eg town planning) Should exercise of a power be responsive to local needs? (eg local infrastructure) Does the power relate mainly to local conditions (eg culture, local transport) The status quo

Framework for the (legislative) distribution of powers The choice between exclusive and concurrent powers The use of ‘framework’ powers The use of ‘lists’ in distributing power Principles to resolve inconsistency/overlap of powers Assignment of residual power Different choices in all federations.

Some examples India Exclusive Union list; exclusive state list; concurrent list Residual power to Union Union law prevails over ‘repugnant’ state law unless the latter was reserved for the President’s assent Australia One (largely) concurrent list for the centre Central (Commonwealth) laws prevail over ‘inconsistent’ state laws Residual power to the states

Distribution of executive powers A federal distribution of powers involves executive as well as legislative power States/regions administer their own legislation in all federations Subject to any arrangements for intergovernmental co-operation In many federations, the Union also administers its own legislation (eg US, Canada) In some federations, the states/regions administer much/some Union legislation (eg Germany, India, South Africa) This requires A decision about what kinds of Union legislation is administered by the states/regions Trust and co-operation between the levels of government A decision about the extent of Union control over the administration of its legislation

Distribution of tax powers Same principles apply as for the distribution of other powers Practice varies between federations, along a spectrum of possibilities At one end of the spectrum, each level of government imposes taxes for its own purposes Eg, in US both levels of government can impose income tax and sales tax At the other end of the spectrum, one level of government(usually the centre) imposes all or most taxes Germany is an example In some cases, the taxes imposed by one level of government are collected by the other Germany is an example again Where one level of government imposes more of the taxes, it is necessary to consider arrangements for revenue sharing

Revenue sharing and fiscal equalisation Even where tax powers are distributed between the levels of government, there is usually an imbalance in favour of the centre Revenue sharing therefore takes place in every federation, whether the Constitution provides a framework for it or not. Revenue sharing distributes funds to other levels of government for general purposes They may be distributed for specific purposes as well Most federations also make arrangements to equalise revenue between units, to enable similar standards to be achieved This is sometimes described in terms of ‘solidarity’ One important issue is the extent to which these decisions should be made politically or on the advice on an independent/expert/intergovernmental body

Structures of government Core subject matter of every Constitution In a federal system Structure of government for both levels Federalism may affect the form of structure of government Executive Parliamentary, presidential, semi-presidential Federal considerations Legislature Electoral system Judiciary Issues in Somalia?

For discussion Questions arising from this session? Points that need further explanation? Critical issues for Somalia? Federalism or something else? Number and configuration of states Distribution of power Power over resources Institutional structure at the centre Other?