Overview of The Branches of Government: Are The Powers Truly Separated?
Background
27th June 1977, Djibouti gains independence from the French. A constitution is only proposed 15 years later in 1992 by the President of the Republic.
This was proposed during the civil war of the 1990s to encourage the alienated Afar people to return into the political scene in an attempt to garner trust. Notably, the Constitution legalised multiparty politics and enshrined human rights which were the main concerns of the people during this time period.
The Constitution was largely inspired by the French Constitution & Islamic Law and set out to establish the key institutions of government, their functions and relationships with each-other, uphold human rights, formally recognise the existence of regional administrative districts & the necessary conditions for constitutional amendments.
Prior to its proposal, the young nation operated using a combination of customary (traditional) laws, Islamic Law and the French Napoleon Code.
The Prime Minister of Djibouti Abdoulkader Kamil Mohamed addressing the National Assembly
The Branches of Government
The constitution establishes 3 main branches of government: 1) The Executive Branch; 2) The Legislative Branch; 3) The Judiciary
In theory, the 3 branches are independent from one another and ensures the separation of powers such that the branches do not conflict with the powers & functioning of other branches. It enables power to be decentralised from one source to multiple in order to prevent corruption and authoritarianism.
The Executive Branch – (Title III of the Constitution)
The Executive Branch comprises of the President of the Republic, the Prime Minister (PM) & Ministers. The President directly selects the PM and approves of the selection of ministers chosen by the PM. The President is the Chief of Armies & Police and selects military chiefs/generals. The President is elected by popular vote every 5 years. However, there is no term limits as a constitutional amendment was passed in 2010 which saw them abolished. The President also serves several functions within the Judiciary which we will discuss shortly.
The PM is responsible for directing the President’s program and bringing bills to the Assemblée Nationale (National Assembly) to be passed into law. They serve as the liaison with the Legislature.
The PM leads the Council of Ministers which is presided over by the President, thus overseeing the agenda and formulation of bills. The PM & Ministers can be dismissed at any time by the President. This contrasts to the French system where the President can appoint but not dismiss the PM. The National Assembly, however, can dismiss the PM & cabinet by passing a vote of no confidence, but this is not the case in Djibouti.
The Legislative Branch – (Title IV of the Constitution)
The Legislative Branch consists of 65 members of parliament named deputees. They are organised into one-house (unicamerally) called the National Assembly and are directly elected every 5 years by popular vote. Deputees represent different administrative districts and the distribution of seats depends on the population of these districts. They vote on bills proposed by the PM and, at times, other deputees.
A simple majority is required for a bill to become law. Unicameral organisation of the Legislature allows bills to be passed into law faster with minimal friction. This contrasts to the French Legislature which consists of two-chambers (bicameral organisation), the National Assembly & Senate, where members of the Senate are elected indirectly by members of the National Assembly.
For discussions on constitutional amendments, a third of the National Assembly is needed to vote in favour for the discussion to proceed.
Unlike the French system, the Legislative branch doesn’t have the power to table a vote of no-confidence against the PM & Ministers. This, in combination with the fact that only the President has the power to remove the PM & Ministers, incapacitates the Legislature and their ability to hold the Executive accountable and contribute the nations agenda. It also compromises the PMs ability to meaningfully receive and implement feedback from the Legislature without fear from repercussion from the President of the Republic, because, as mentioned earlier, the President has the power to dissolve the cabinet. This renders the Legislative institutionally weak, as they are unable to contest their relationship with the Executive branch and help shape the national agenda.
Summary of the key government institutions ensuring separation of powers, and their relationships.
The Judiciary – (Title VII of the Constitution)
The judicial branch comprises several entities responsible for overseeing popular and institutional adherence to the legal code. I non-exhaustively outline their functions and structure below but emphasise on their relationship with the Legislative & Executive branches.
The High Court of Justice (Loi Organique n°6 /AN/94/3ème L)
Composed of 18 judges: 9 permanent & 9 appointed by the Legislative every 5 years
Appointment process overseen by the Superior Council of the Magistracy
High Court of Justice is competent to judge the President of the Republic & members of the government
Tribunals of First Instance – (Loi n°52/AN/94/3e L)
Lower court
Responsible for mediating civil disputes
Appellate Courts – (Loi Organique n°52/AN/94/3e L)
If case is successfully appealed at Tribunals, it’s heard at the Appellate Courts
Supreme Court – (Loi Organique n°63/AN/10/6ème L)
Composed of permanent and elected judges
President of the Supreme Court selected by President of the Republic
President of the Supreme Court responsible for functioning & budget of the Supreme Court
Highest civilian court
Court of Accounts – (Loi Organique N° 140/AN/16/7ème L)
Responsible for legal oversight on government finances, expenditure and budget
President of the Court of Account appointed by President of the Republic
Superior Council of the Magistracy – (Loi Organique n°3/AN/93/3ème L)
Presided by the President of the Republic & the VP of the Council is the Minister of Justice
The President of the Republic & President of the National Assembly each select 3 members to the council who are not deputees nor part of the judiciary
All are then admitted by the President for a duration of 4 years
Superior Council of the Magistracy advises other magistrates over their careers & serves as a disciplinary council for all magistrates
The Constitutional Council – (La Loi Organique N°4/AN/93/3eme L)
The council serves to oversee adherence to the constitution, integrity of elections & the review of constitutional amendments that may be proposed
Independent from the other 3 branches
Consists of past presidents (members of right) & 6 appointed members in total. Appointed members serve non-renewable 8-year mandates. Their appointment is reviewed on their 4th year and extended to completion.
The President of the Republic, the President of the National Assembly & the Superior Council of the Magistracy each nominate 2 individuals to the Council
The President of the Constitutional Council is selected by the President of the Republic
The selection criteria for the Constitutional Council contrasts to the French system where members of the constitutional council are selected by the Presidents of the Republic, National Assembly & Senate.
As Djibouti’s parliament is unicameral, the other 2 members are chosen by the Superior Council of the Magistracy, which is already presided by the President of the Republic. Additionally, in the French system, appointed members serve non-renewable 9-year terms. This contrasts to the Djiboutian framework where appointment terms are of 4 years (renewal and extension to 8 years dependant on review). This may compromise the independence of the Constitutional Council as elected members may potentially be dismissed at the 4-year mark.
Furthermore, the Ministries of Justice & Finance are responsible for the intake and promotion of judges/magistrates within the judiciary (Décret n°95-0027/PR/MJ; Décret n°2002-0062/PR/MJAPM ). This makes judges/magistrates susceptible to bribery and corruption at every stage of the Judiciary.
Reports have previously been published were judges decisions would not be followed by the government. This is frequently observed with political opponents who are unlawfully detained.
Conclusions
Despite the theoretical establishment of distinct branches of government to ensure the separation of powers, in practice, powers may not be separated.
The Executive branch exerts influence on the judiciary by controlling the admission & progression of magistrates throughout their career. It also exerts influence through the appointment process for members of the Constitutional Council in which the Executive directly & indirectly appoints 4 of the 6 members. Additionally, the ability of the President of the Republic to arbitrarily dismiss the PM & cabinet but not the Legislative disincentivises the PM & cabinet from being held accountable to the Legislative and allows the Executive to control the national agenda with few checks from the Legislative. The Judiciary suffers from significant overreach from the Executive to a degree that it is susceptible to corruption & coercion.
A thorough review of the Djiboutian government institutions & legal system is required to assess the depth of the relationships and interdependencies of the different branches and how independence can be assured in the future.