Saturday June 9, 2018
by: Somali Public Agenda
Women adorned in Somali flags celebrate Somalia’s Independence Day at
Konis stadium in Mogadishu on July 1, 2013, markiing 53
years since the Southern regions of Somalia gained independence from
Italy and joined with the Northern region of Somaliland to create
Somalia. AU UN IST PHOTO / TOBIN JONES. The process of drafting a federal constitution for Somalia dates back
to 2004 when a Federal Charter and a federal system of governance were
adopted in Kenya. The Transitional Charter mandated the formation of an
independent commission that would prepare a new federal constitution in
two and half years. However, the commission was only formed two years
later, in 2006, by the Transitional Federal Government (TFG) president,
Abdullahi Yusuf.
The Independent Federal Constitution Commission (IFCC) produced the
first draft constitution in July 2010. An additional 9-member Committee
of Experts (CoE) was established alongside the IFCC in 2011, and the two
commissions organized constitution conferences in Garowe (twice) and
Gaalkacyo, and presented a Harmonized Draft Constitution in April 2012
to the six signatories of the 2011 Roadmap – TFG leaders President
Sheikh Sharif Sheikh Ahmed, Prime Minister Abdiweli M. Ali, Speaker
Sharif Hassan Sheikh Aden, Puntland President Abdirahman M Farole,
Galmudug President Mohamed Ahmed Alin and Abdulkadir Moallim Nur of Ahlu
Sunna Wal Jamaaca.
However, a Technical Review Committee formed by the signatories
revisited the constitution in Addis Ababa and Nairobi without the
presence of IFCC and CoE members, and the signatories endorsed the
constitution. Many Somalis believe that the current 2012 Provisional
Constitution is the product of the Addis Ababa and Nairobi review
meetings. The IFCC and CoE were subsequently dissolved by a decree and
the protocol establishing the National Constituent Assembly (NCA), among
others, was signed in Nairobi. On August 2012, 825 Constituent Assembly
endorsed the 2012 Provisional Constitution.
As many issues were left unresolved, a new phase of a constitutional
review started in 2012. The provisional constitution mandated a
parliamentary oversight committee and an independent review commission
to finalize the constitution. The Independent Constitutional Review and
Implementation Commission (ICRIC) – which was formed in June 2014 — and
the parliamentary Oversight Committee fell short of expectations for
various reasons including insufficient resources, a limited timeframe,
political instability and absenteeism of its members. The two
commissions, however, hastily reviewed the constitution in the last
months of the mandate of the 9th parliament [2016] and
submitted to parliament a revised version which included options on some
of the more contentious issues. The Parliament, in turn, delegated the
mandate of finalizing the constitution to the current 10th parliament.
Contested and technical issues
The content of the constitution which is under review is divided into
two main categories: technical review and contested political issues.
Parliamentary review is sufficient for the resolution of the technical
issues. The parliament, especially the oversight committee with the
support of the ICRIC, should prioritize reviewing the technical issues
thoroughly.
The second category of the review process involves the contested and
unresolved political issues. The practice of a federal system in Somalia
requires prior consent and agreement on a number of political issues.
These include the powers and responsibilities of the federal government
and regional states, the share of fiscal and natural resources, the judiciary model,
the status of Mogadishu, the powers of the president and prime
minister, and the representations and mandates of the two chambers of
the federal parliament.
The review commissions cannot decide these matters without a prior
consent of the political stakeholders. Agreement over these contested
issues is the most complex and difficult part of the constitutional
review. There has not been a clear platform for initiating the
discussion on these issues. The role of different institutions intended
to spearhead the review process could not be agreed upon by the relevant
entities.
Overlapping institutions
Although the constitution mandates the Oversight Committee and ICRIC
to review the Provisional Constitution, there are many existing
institutions responsible for constitutional affairs at both federal and
state levels. The federal government has three constitution entities:
the Ministry of Constitutional Affairs, the Independent Constitutional
Review and Implementation Commission, and the parliamentary Oversight
Committee.
There have been numerous clashes and deadlocks between the Ministry
of Constitutional Affairs and the constitution review commissions over
their respective mandates and roles in the review process, which has
resulted in delays. The commissions and the Ministry separately
organized a number of consultation conferences in Mogadishu and the
regional capitals. Notwithstanding that a Memorandum of Understanding
was recently [2018] signed by the three federal-level constitution
institutions, the rift among the institutions is not genuinely resolved.
Furthermore, there are state-level interests to be considered.
Regional states – Puntland, Jubaland, SouthWest, Galmudug, and
Hirshabelle – all have ministries responsible for constitutional
matters. Accommodating all these overlapping institutions is going to be
challenging. In mid-May, for example, Jubaland refused to take part the launch of the National Constitutional Convention in Mogadishu.
Somali ownership
Another major challenge that could explain in part why Somalia is yet
to have a permanent constitution is that the constitution-making and
review processes were funded primarily by international donors. Millions
of dollars were spent on the Provisional Constitution since the process
began more than a decade ago.
The lack of Somali policymakers’ interest in investing in the federal
constitution combined with the international community’s determination
to contribute to the design of it, has ensured that the review process
remains an endless mission. Indeed, the creation of many constitution
institutions and the conflict among them can be partly explained by the
continuing availability of donor funds for the process.
It is, however, to be commended that the current federal government
has for the first time allocated funds — $3 million this year — from the
national budget for the constitution review process. If disbursed and
managed properly, the government budget would be sufficient for the
review. Financial support and involvement of the international community
should continue and perhaps be aligned with the later stages of the
review process, — the public outreach and nationwide plebiscite.
Roadmap for the constitutional review process
Somali citizens need a constitution that responds to their political,
economic and social interests. The constitution-making and review
process has dragged on long enough and continues to present an obstacle
to the building of state institutions and the delivery of better social
services to the public.
To ensure that the results of the Somali constitution review
processes endure, five steps have to be taken seriously by the relevant
stakeholders.
First, the parliamentary Oversight Committee and the ICRIC should
prioritize reviewing the technical issues of the constitution, which
make up the majority of the matters which need to be resolved. Most of
these technical issues have previously been examined in detail, and it
should not be difficult to produce a second revision and assessment for
parliamentary review and approval. If the technical issues were
addressed, it might provide the momentum to move forward with
recommendations on the more contentious political issues.
Second, the incumbent Council of Ministers of the Federal Government
of Somalia should reach out the key political stakeholders including the
leaders of the federal states, politicians and interest groups for
discussing the contentious political issues. A national forum could be
launched for this purpose, with subcommittees to deliberate on such
issues as the powers of the president and prime minister, the powers of
the two chambers of the federal parliament, the responsibilities and
powers of the federal government and states, the share of fiscal
resources, the judiciary model, the share of natural resources and the
status of Mogadishu. Each of these issues should be discussed and agreed
by the political stakeholders in a specified timeframe. The
constitution commissions could then prepare summary statements in the
form of constitutional articles for presentation to the public.
Third, once the technical issues are fixed and the contentious issues
are agreed upon by the political stakeholders, the harmonized draft
constitution should be presented to the public, both to educate them and
to seek their input. This is the stage where the Ministry of
Constitutional Affairs and the regional constitution ministers would
take a leading role. A vigorous public outreach program and creative
methods to record and synthesize the public voice should be designed in
advance.
Fourth, the draft constitution — with the input of the public —
should be presented to the two chambers of Parliament for their
temporary approval. It would remain as a draft until a nationwide
plebiscite was held that would give the constitution more legitimacy.
However, it would be much better than the current blurred provisional
constitution.
Finally, a national constitutional plebiscite would depend on two
things: (i) an answer to the Somaliland question, and (ii) the state of
security of the country. However, this important exercise would give
more legitimacy to a constitution that was reviewed in an inclusive
process.
Given the planned 2020-21 elections and the need to establish
properly functioning institutions, the constitutional review roadmap
outlined here require committed leadership whose sole interest is to
produce a constitution that responds to the interests of the general
public and gains its approval in a legitimate and inclusive process.
Somali (http://somalipublicagenda.com/sida-dastuur-waara-loogu-sameyn-karo-soomaaliya/ )