Urgent Concerns Regarding the NAVPASS Contract: A Call for Accountability

I reach out to you as a dedicated Member of Parliament representing the Federal Republic of Somalia, compelled by a robust sense of responsibility to protect our Constitution and maintain national sovereignty. This communication addresses a pressing issue related to the NAVPASS agreement, which governs the collection of all Air Navigation fees and raises troubling legal and constitutional questions.

The current iteration of the NAVPASS contract blatantly violates the Public Financial Management (PFM) Act of 2019. This legislation mandates that all governmental revenues, including those related to aviation, be channeled directly into the Central Bank of Somalia’s Treasury Single Account (TSA). Diverting these funds to a foreign bank account controlled by a private firm raises alarm bells for legal and ethical compliance and undermines our financial management system considerably.

Furthermore, this contract may contravene Article 54 of the Somali Constitution, which delineates the federal government’s scope, including superior authority over foreign affairs and national defense. Outsourcing airspace management—a quintessential aspect of national sovereignty—to a foreign company could signify a breach of constitutional duty, infringing on the Somali state’s sovereignty.

The potential for international legal complications is equally alarming. NAVPASS, registered in jurisdictions such as the UAE, Somalia, and the Bahamas, may place Somalia at significant legal risk regarding international anti-money laundering (AML) regulations. The obscured nature of this contract and possible conflicts of interest could spark investigations by international financial regulators like the Financial Action Task Force (FATF), potentially leading to sanctions or punitive actions against our nation.

The ramifications of such investigations would tarnish Somalia’s global reputation, deter foreign investment, and further distance our country from the international financial community. Additionally, this arrangement seems to breach Somalia’s commitments under the United Nations Convention Against Corruption (UNCAC). The lack of competitive bidding and transparency in awarding the NAVPASS contract raises alarming red flags about corruption and mismanagement—issues that could attract heightened scrutiny from global entities and damage Somalia’s standing internationally.

The PFM Act of 2019 serves as a cornerstone for promoting transparency, accountability, and responsible management of public resources in Somalia. This law demands unwavering adherence to established procedures, laying a framework for protecting public assets. The NAVPASS contract presents significant legal challenges, notably concerning the following sections of the PFM Act:

Section 7 explicitly states that all public financial dealings must adhere to principles of transparency, legality, and accountability, necessitating a thorough review by the Solicitor General for any contract utilizing public funds.

Neglecting this review not only violates statutory requirements but jeopardizes the legitimacy of the entire contractual arrangement, undermining the rule of law and establishing a precarious precedent for managing public funds moving forward.

Section 10 mandates that significant contracts undergo scrutiny and receive approval from the Council of Ministers. This measure ensures that partnerships with major financial ramifications, such as the NAVPASS arrangement, receive proper examination from elected representatives.

By bypassing this critical approval process, serious doubts emerge regarding the contract’s legitimacy and the motivations driving its execution. This circumvention erodes public trust in the financial transparency and accountability of government dealings.

My investigation reveals that the NAVPASS contract was never presented to the Somali Solicitor General or the Cabinet Ministers for requisite review and approval, contradicting legal protocol.

This significant oversight represents a grave violation of the PFM Act of 2019, specifically Section 7, mandating thorough review and subsequent endorsement of all critical financial contracts involving public funds. Such negligence highlights a failure to uphold the core principles of transparency and accountability enshrined in Somali law.

The secretive process behind the NAVPASS agreement—with only the President, Prime Minister, Minister of Finance, and Minister of Transportation privy to the actual terms—further violates procedural laws.

This lack of openness breaches Section 10 of the PFM Act, which advocates for public scrutiny of all financial agreements. The obscured details raise disturbing questions about corruption, conflicts of interest, and potential abuses of power. Such negligence in keeping critical information from other relevant government entities and the public reflects a serious dereliction of duty by involved officials, undermining good governance principles.

It seems the NAVPASS contract emerged from covert negotiations lacking the necessary oversight and compliance with legal mandates. This behavior stands in stark contrast to the Public Procurement, Concessions, and Disposal Act of 2015, which emphasizes transparency and accountability in public procurement processes.

Reports indicate that airlines using Somali airspace owe $38 million, according to the International Air Transport Association (IATA), to the Somali population. This uncollected revenue, if misappropriated, violates the Somali Constitution, especially Article 44, which mandates the equitable management of public resources for all citizens. Such misallocation could precipitate severe legal ramifications, including accusations of embezzlement and corruption against those involved.

The reported approval of this contract by Your Excellency, alongside the Prime Minister and the Minister of Finance, without the essential participation and oversight of other cabinet members raises pressing questions regarding the separation of powers enshrined in our Constitution. Article 69(b) stipulates that significant financial agreements involving public resources must secure Parliament’s approval, and ignoring this requirement diminishes both Parliament’s authority and democratic governance in Somalia.

At an international level, these actions may trigger significant repercussions. The obscure, unregulated nature of this contract could provoke investigations from global financial institutions like the International Monetary Fund (IMF) and the World Bank, possibly leading to a suspension of monetary assistance or loans. Furthermore, mismanagement of aviation fees could incite punitive measures from international aviation regulators such as the International Civil Aviation Organization (ICAO).

The participation of Mr. Thomas Perkins, CEO of NAVPASS, complicates matters further. Reports suggest that NAVPASS insisted on including the Minister of Finance’s signature as a condition for contract acceptance, raising numerous legal and ethical concerns about compliance with both Somali law and international standards.

This demand may conflict with Sections 7 and 10 of the PFM Act of 2019, which outline the legal review and approval paths for critical financial contracts. Such insistence implies that NAVPASS sought to sidestep the traditional government procurement processes that ordinarily involve the Solicitor General and the Council of Ministers.

This potential evasion casts doubt on the transparency and accountability required by Somali law, leading to questions about the contract’s legality and the intentions fueling its inception.

The undue influence of a foreign corporate leader over a high-ranking Somali official raises significant red flags concerning international anti-corruption regulations like the UN Convention Against Corruption and the African Union Convention on Preventing and Combating Corruption. If Mr. Perkins is found to have pressured Somali officials, it could implicate both him and the company in corrupt practices.

This scenario could be construed as a breach of fiduciary responsibilities by the Minister of Finance. A signature obtained under duress or without appropriate legal validation could suggest misuse of power, violating the principles of good governance outlined in the Somali Constitution.

The Minister’s approach may also infringe upon the Code of Conduct for Public Officials, mandating that officials prioritize state interests and avoid any actions that might compromise their integrity.

On an international level, this could subject Somalia to severe legal and financial repercussions. NAVPASS facing allegations of corrupt dealings or undue influence over officials could result in sanctions or legal action under anti-bribery statutes, like the U.S. Foreign Corrupt Practices Act or the UK Bribery Act.

Such circumstances could entail significant legal liabilities for NAVPASS and the Somali government, tarnishing our nation’s reputation and standing in the global community. Increased scrutiny from international financial institutions could jeopardize Somalia’s access to vital financial aid, potentially resulting in damaging sanctions or a blacklisting that would harm our economy and financial frameworks.

The outlined actions represent both impeachable offenses and potential criminal violations under Somali law. By subverting necessary legal protocols and ignoring the stringent requirements set forth in the PFM Act, high-ranking officials have collectively violated their oaths of office. Such breaches not only erode public confidence but also critically threaten Somalia’s financial sovereignty.

Proper governance necessitates that all public revenue is managed transparently and deposited in the Central Bank of Somalia’s Treasury Single Account. Directing aviation-related fees into a foreign bank account without legally justified processes contravenes this law. Such behavior could be characterized as misappropriation of public funds, potentially qualifying as embezzlement under Somali criminal statutes.

The disregard for legal obligations when executing the NAVPASS contract not only renders the agreement voidable but also exposes the officials involved to allegations of abuse of power and neglect of duty. These issues may justify impeachment under Article 92 of the Somali Constitution, which allows for the removal of high officials for “treason, abuse of office, or violations of the Constitution or any other laws.”

Consequently, I assert that the actions of the President, Prime Minister, Minister of Finance, and Minister of Transportation comprise violations of constitutional duties warranting both impeachment and criminal prosecution. It is imperative to investigate these matters thoroughly and hold those culpable accountable to restore public integrity while safeguarding Somalia’s financial sovereignty and reputation.

Regrettably, the current Parliament has shown a concerning unwillingness to investigate or address these impeachable and criminal actions, representing a disturbing lapse of duty under Article 72, which states that Parliament must oversee and hold accountable government officials guilty of misconduct. Failing to act implies complicity in these violations, undermining the essential checks and balances vital for a functioning democracy.

Given the severity of these infractions, I intend to pursue legal action against Mr. Thomas Perkins and NAVPASS in an international court. This legal move allows us to activate universal jurisdiction—the principle enabling prosecution of specific offenses irrespective of location—particularly for actions with broad implications on state sovereignty and the international financial landscape. This route would empower us to subpoena all records pertinent to this illegal contract, ensuring that the Somali populace uncovers the truth and those responsible face justice.

Your Excellency, by pilfering a critical revenue stream that could lead Somalia toward self-sufficiency, this leadership has jeopardized our nation’s goal of reducing reliance on external donors, compromising both sovereignty and territorial stability. The ramifications of these actions could weaken Somalia’s statehood, diminish international credibility, and trigger long-lasting economic turmoil.

I implore Your Excellency to ponder the grave repercussions posed by the NAVPASS contract, clearly contradicting core legal and statutory obligations under Somali law, along with the PFM Act of 2019, the Somali Constitution, and our nation’s commitments to global anti-corruption standards.

This contract appears to violate the constitutional framework set forth in Article 54, which bestows the federal government with sole authority over national sovereignty matters such as airspace management. By surrendering control of such functions to an external entity without appropriate legal endorsement, the government may have acted beyond its authority—raising serious doubts regarding the contract’s legality.

In light of these grave legal, constitutional, and international implications, I strongly urge Your Excellency to take immediate corrective action to rescind the NAVPASS contract and align all future agreements with the legal parameters of the Federal Republic of Somalia. The Somali people deserve governance driven by transparency, accountability, and an unyielding defense of our national sovereignty.

(Dr. Abdillahi Hashi Abib is a Member of Somalia Federal Parliament)