Design, Neglect and Defiance: The November 2026 Judicial Crisis in Somalia

The crisis revealed an institutional shortcoming and a failure to comply. The 2012 Provisional Constitution entrusted judicial review, the power to set aside laws and government acts that conflict with the constitution, to a court that successive governments never constituted, so the Supreme Court heard the case under an interim grant of jurisdiction in the 2026 text. The 2026 text also prescribes how a Chief Justice may be removed and how a successor is appointed, and the presidency did not follow either procedure. Article 3 of the 2012 Provisional Constitution founds the state on the separation of powers among the legislature, the executive and an independent judiciary, and Article 3 of the 2026 text repeats that principle. In a report for the Heritage Institute in January 2025, I described the constitutional framework as one in which Parliament, the executive and the judiciary form three equally essential branches of government. Parliament and the executive are political creations, and they were in turn to create the judiciary, the one branch meant to stand outside politics, and to respect its independence in resolving disputes, including disputes to which they are parties. To secure that independence, the Constitution gave the Judicial Service Commission authority over federal judicial appointments, discipline and transfers, and required the Commission itself to be independent, nonpartisan, subject to no one's direction and funded by its own vote in the budget. These provisions required implementation. The Commission could exist only once Parliament enacted its law and the executive and Parliament filled its seats, and responsibility for establishing it in accordance with the Constitution therefore rested with the two political branches. Without a working Commission, the courts could not become institutionally independent of the political branches. That failure, carried forward into the Supreme Judicial Council under the 2026 text, lies at the heart of the November crisis: no functioning body stood between the President and the Chief Justice. Successive governments dissolved and reconstituted the Commission without securing its independence, and presidents exercised in practice the powers over judges that the constitutional scheme assigned to the Commission or made subject to its recommendation. Hassan Sheikh Mohamud removed a Chief Justice by decree in 2016, Mohamed Abdullahi Farmaajo removed another in 2018, and November brought the third removal since 2016. In the 2025 Heritage report, I concluded that the federal government operated as a two-branch system, with the judiciary institutionally dependent on the executive. The report sought to encourage debate on establishing an independent judicial branch. The constitutional texts The 2012 constitutional design should be assessed in relation to the text it replaced. The 2004 Transitional Federal Charter, which governed the transitional institutions until 2012, gave judicial review to the Supreme Court. Anyone could ask that court to declare a law or government act contrary to the Charter, and the court had to give such cases priority. Judicial independence rested on a Judicial Service Council made up of the Chief Justice, the Attorney General (the chief prosecutor), three judges elected from the Supreme Court and four private lawyers chosen by the Law Society. The President appointed judges on the Council's advice. Disciplinary decrees required a proposal from the Justice Minister and had to conform to the Council's decision. A judge could be removed only for incapacity or misbehavior, and only after a tribunal appointed by Parliament had recommended removal to Parliament. These procedures did not permit the President to act unilaterally. The 2012 text made two changes. It replaced the Charter's Judicial Service Council with the Judicial Service Commission, and it created a Constitutional Court with exclusive power over judicial review, disputes between the federal government and the states, and impeachment trials (Art. 109C), taking judicial review away from the Supreme Court. The Commission was to nominate the new court's judges, and the President appointed judges on the Commission's recommendation, so his power over judges again depended on another body. Parliament had thirty days after the first Cabinet was formed to establish the Commission and sixty to establish the Court, and the text provided no interim forum for judicial review if either deadline was missed. Neither deadline was met. Article 86 limited direct challenges to legislation to specified parliamentary actors, the Cabinet or at least ten thousand registered voters. Article 109 also let any individual, group or the government refer a public-interest question directly to the Constitutional Court, but Article 109C left such references off the list of that court's powers. The Constitution itself set no grounds or procedure for removing judges, but the 2014 Commission law supplied them for disciplinary complaints, placed those complaints with the Commission and allowed the Supreme Court to review the Commission's final decisions. The 2026 text gives the Supreme Court the Constitutional Court's powers until that court is established. In place of the Commission in the 2012 text, it establishes a Supreme Judicial Council, referred to below as the Council, and it raises the threshold for removing a Chief Justice by requiring both the Council and the two houses of Parliament to act. The safeguards for the Chief Justice in the 2026 text contain several limitations. The list of removal grounds ends with a broad provision encompassing grounds found elsewhere in the Constitution or in legislation, so an ordinary statute can add grounds. Under Articles 145 and 149, the Chief Justice chairs and convenes the Council, and only the deputy may convene it in his absence. Because the deputy is the president of a Constitutional Court that does not yet exist, that power falls to the Prosecutor General. The Council must meet quarterly, yet the text supplies no way to call a meeting when the chair is present and refuses, including when the complaint is against him. Nor does it provide an express appeal from a parliamentary removal vote, although the Supreme Court's general jurisdiction over federal appointments and removals may reach that case. Under the 2026 text, a ministry proposes the Council's lawyer and expert members, subject to approval by the Cabinet and both houses. Under the 2012 text, the Law Society chose the Bar's members. The 2026 text retains the restrictions on direct challenges to laws, lowers the threshold to five thousand people who meet voter qualifications and adds the national interest as a ground. It also drops the constitutional public-interest route. Article 20 of the 2016 Constitutional Court law still provides a direct public-interest route, and Article 191(1) of the 2026 text keeps it in force until existing laws are reviewed for consistency with the new text. Whether Article 20 survives that review is unsettled. The implementation Record Parliament passed a Constitutional Court law in 2016, but no judge has been appointed under it. Between 2015 and 2022, the Commission that was to nominate the Court's judges was dissolved, reconstituted by decree and dissolved again. In March 2015 a presidential decree dissolved the existing Commission on the ground that its establishment did not conform to the 2012 text and the 2014 law, and the Chief Justice called the dissolution unconstitutional. The Cabinet endorsed seven new members in May 2015, but in 2017 the government was still urging Parliament to fill the vacuum. On December 30, 2020, a presidential decree put seven members in place. Upper House Speaker Abdi Hashi called the appointments unlawful because his chamber had not approved them and challenged the caretaker Cabinet's authority to nominate members. On October 6, 2022, in a decree issued to correct the appointment procedure, the President rescinded the December 2020 decree, dissolved the Commission, purported to annul its decisions and directed the government to reconstitute it under Article 109A and the 2014 law. I have found no published record that any of these bodies nominated a judge. Under Article 109B, the Commission proposes the Court's judges, the House of the People approves them and the President appoints them. The political branches held the last two steps and could prevent the first by dissolving the Commission. The Court Parliament had created in 2016 was never constituted. In February 2026 the government told the UN Human Rights Council that the Court had been delayed mainly by the absence of prerequisite institutions, including the Judicial Service Commission, and committed to completing it by 2027. Hassan Sheikh Mohamud had dissolved the last Commission in October 2022 and directed his own government to rebuild it. The removal of Chief Justices followed a similar pattern of presidential action by decree. The 2016 decree removing Aidid Abdullahi Ilka-Hanaf cited age and health, and he agreed to leave office while disputing how he was removed. The presidency presented Suleiman's 2018 removal as part of judicial reform. I have found no published record that either removal went through the Commission. Compliance with court orders also presented difficulties: in 2017 the Supreme Court ordered fresh elections for eight parliamentary seats, the House of the People voted to keep the sitting members, and the judgment went unenforced. The November Events On October 12, former President Sharif Sheikh Ahmed filed a petition in the Supreme Court challenging the amendment process and the extension of federal mandates. Three weeks later, on November 4, the presidency announced Baashe's dismissal, citing complaints from judges and legal professionals. His replacement, Suleiman, had been Chief Justice from 2016 to 2018 and was appointed the President's interim legal adviser in May 2022. On November 5, a five-judge panel of the Supreme Court's constitutional division, chaired by Judge Salah Sheikh Ibrahim Dhiblawe, dismissed the amendment challenge for lack of standing under Article 86 of the 2012 text. It held that the term extension did not apply to incumbents, so the mandates of both houses and the Cabinet had ended on April 14 and the President's on May 15. It declared void any power exercised under the extension after the original mandates expired, limited the Cabinet to caretaker business, gave the parties 30 days to agree on an electoral model and ordered elections within 90 days. In a separate written statement the same day, the Court declared Baashe's removal void and said its purpose was to interfere with a constitutional case already before the court. The next day OSAG publicly stated that the judgment had no legal effect, objecting among other things that the Chief Justice had not presided. On November 7, Suleiman took the oath in the President's presence. Gaps and defiance Successive governments never constituted the Constitutional Court, and the 2012 text provided no interim forum with its powers, so the panel relied on Article 191(3) of the 2026 text, the same text whose adoption Sharif challenged. Article 191(3) does not specify who sits on the interim bench, which allowed OSAG to dispute the panel's composition on the ground that the Chief Justice had not presided. The 2012 text, though meant to be finalized by amendment, gave no court any role in reviewing that process. The judges therefore applied Article 86, written for challenges to legislation, to a challenge to the constitutional amendment process. That interpretation appears difficult to reconcile with Article 86 itself, which covers only legislation passed under Parliament's ordinary procedure, not amendments made under Article 132 of the 2012 text. Nevertheless, it addressed an omission in the 2026 text: it gives the Constitutional Court power to review the amendment process without saying who may bring such a challenge. The removal and appointment raise distinct procedural concerns. Article 138 of the 2026 text requires a written complaint stating its factual and legal basis, approval by two-thirds of the Council's members, referral to the presiding officers of the House of the People and the Upper House within fifteen days and a secret ballot carried by a majority of the total membership of each house. Article 135 requires a Council nomination and approval by both houses before the President appoints a successor. Both procedures were expressly prescribed in the text; the presidency did not follow them. Earlier presidents had also removed and appointed Chief Justices by decree. Conclusions Somalia is heading into an election without an agreed way to decide who has the authority to govern. The Supreme Court held that the mandates of the President, both houses and the Cabinet had expired. The government rejected the judgment and disputed the composition of the panel. The Court declared Baashe's dismissal void, and the President went ahead with the swearing-in of his successor. The challenge to the 2026 text ended on standing, leaving its validity undecided. Puntland and Jubaland have rejected the text. A disputed election could carry all these disputes into the next Parliament and add new ones. Somalia has negotiated its way out of crises before. The Garowe Principles set rules as well as allocating seats, but their express limit on the 4.5 clan formula did not hold. In 2017, when the Supreme Court ordered fresh elections for eight parliamentary seats, the House of the People voted to keep the sitting members, with 180 in favor and four abstaining. It invoked the political agreement under which they had been elected. That is the test for the next agreement. If a court orders a rerun, will the election authorities carry it out, and will Parliament leave the seat vacant until the new result is certified? Before voting starts, the federal government, the member states and the opposition should agree on the legal basis and composition of the bench that will hear election challenges, who may bring a case and which officials must carry out its orders. If the court sets aside a result and orders a rerun, the election authorities must hold it, and Parliament must leave the seat vacant until the new result is certified. That limited agreement can be reached while work on the permanent courts proceeds. Any temporary arrangement for the Supreme Court's leadership should protect judicial tenure and leave Baashe's claim for a court to decide. Otherwise, a president who removes a judge can force the other parties to bargain over the judge's office. The next Parliament should make rebuilding the judiciary an early priority. For the four appointed seats on the Council, the parties should agree on qualifications and public vetting. The institutions named in Article 145 should make the appointments through the prescribed process. Once the Council can act, it should propose candidates for Chief Justice and for the Constitutional Court under Article 135. The permanent rules should let Council members convene when the chair refuses, give the public direct access to the Constitutional Court on questions of public interest, and specify who may challenge an amendment. Rebuilding the judiciary matters beyond elections and constitutional cases. In my 2025 report for the Heritage Institute, I argued that the rule of law depends on the judiciary more than on any other institution, because the work of every other institution is eventually tested before it. A court secure in its position makes investigators gather evidence lawfully, prosecutors charge within the law, officials stay within their powers and legislators write laws that can survive review, because each knows a judge can set aside what falls short. A functioning judiciary is therefore the most direct way to raise the standards of the whole state. Judges who depend on the executive for their positions cannot impose that discipline, and every institution that appears before them operates without it.  Somalia's leaders will have to negotiate again. This time they should agree, before they know who will win the election, on who will decide a challenge and what the losing side will have to do. The author is a Somali-American lawyer based in Nairobi. The views expressed in this analysis are his own and do not reflect those of any organization with which he may be affiliated. He can be reached at [email protected].