States, Countries and Peoples: Who Should the Second Chamber Speak For?

Abstract

The Somali Provisional Constitution serves as an important guidepost in the country’s transition to functioning democracy. That document, among its many provisions, crafts the country as a “Federal Republic” that will consist of Federal Member States along with a bicameral national legislature. However, Article 138(2) of the document declares that the Upper House will not be formed until all Federal Member States are official and until the upper House is established, the House of the People (the country’s lower house) shall exercise all legislative powers as a unicameral legislature. This delay has led many Somali policymakers and citizens to question the necessity of a second chamber. While federalization itself is fraught with controversy in Somalia, even those that adhere to federalization do not assume the necessity of bicameralism. This runs in stark contrast to traditional doctrine that a federal state requires a bicameral legislature. Of the 25 states worldwide with a federal arrangement, only three have a unicameral legislature. Included within the nineteen that subscribe to some form of bicameralism are the three federal African states, Nigeria, South Africa and Ethiopia. Additionally, Kenya, a country that many have suggested is federal in all but name, also subscribes to bicameralism. Why, then, is a federal system so strongly correlated with a bicameral legislature? The answer is simple when one looks at the primary purposes of bicameralism and its unique offerings to the federal level of governance. One of the main purposes put forth for bicameralism is multilayered representation, most often including a lower house that is said to represent the people based primarily on population and an second chamber that is said to represent the interests of constituent units. Additionally, even for countries that shy away from full federalization, the trend is towards greater decentralization, “which justif[ies] an independent representation at central level,” for which bicameralism is the “only system appropriate...” Such a bicameral model is followed by two of the three fully federal countries in Africa along with Kenya. Chapter Five of Nigeria’s Constitution lays out the National Assembly, which consists of a House of Representatives and Senate. The House of Representatives contains 360 members distributed based on population while the Senate awards three members to each Nigerian State and one to the capital, Abuja, without regard to population. A similar system is followed by South Africa with the National Assembly and the National Council of Provinces and Kenya with the National Assembly and the Senate. The Senate represents each of the counties as a single member constituency. The only Federal country on the African continent that provides a different model is Ethiopia. While Ethiopia is a federal state with a bicameral legislature, its second chamber is not comprised of representatives of its nine States. Instead, the House of the Federation is composed of representatives of “Nations, Nationalities and Peoples” of Ethiopia. Each recognized nation, nationality and people is given at least one representative in the body and greater representation is distributed depending on group populations. This results in substantial geographic disparity between the various States in the second chamber, cutting out one of the major driving forces between the correlation between federalism and bicameralism. In the Nigerian Senate each State has three representatives, despite the most populous state having more than five and a half times the population of the smallest. For contrast, without regard to population, Southern Nations, Nationalities and Peoples was the most represented State in the last session of Ethiopia’s House of Federation with 62 representatives, compared to 1 from Harari, the least represented State. The dichotomy between these two models is of particular relevance to the Somali transition due to the so-called “4.5 formula” that has dominated representative politics in the country’s transition to democracy. Under this system, each of the country’s four main clans (Darood, Hawiye, Dir, and Digil-Mirifle) each received an equal share of appointed parliamentary seats while the remaining clans were given half the total of each of the main clans. This arrangement has held as traditional “one-man, one-vote” style elections have yet to be held. There are allegations that there is a reticence among those currently in power to cede power to elections. This makes alternative arrangements of particular political relevance. It is important to note that arranging the Somali Upper House in a manner similar to the Ethiopian House of Federations is legally indefensible under the Provisional Constitution, which provides that the Upper House “represents the Federal Member States.” However, the document itself requires a complete review after the first term of Parliament, and the Federal Member States themselves have been politically controversial the point of potentially requiring constitutional amendment. This means that despite the Provisional Constitution’s attempt to craft a successful system of governance for the East African state, all options should, and do, remain on the table. With these options, along with the troubles of Somalia in forming a Federal Republic as envisioned by the provisional constitution, this paper aims to examine what factors make up worldwide second chamber design, including sub-national units, population and more traditional cleavages such as ethnolinguistic groupings. The analysis will attempt to flush out best practices and pitfalls to be avoided for federalizing states that seek an alternative to equal representation in the second chamber model that has been attacked as undemocratic, instead looking for a more individualized structure while remaining under the broad flag of bicameralism.