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

2. 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

3. 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

4. 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.

5. 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

6. 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

7. 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

8. 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

9. 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?

10. 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?