By Mohamud M Uluso
The debate on
the Constitution-Making Process in Somalia shifted to a perilous
level after
the international community demanded IGAD to submit the list of
the critics —labeled
“spoilers” of the peace process of Somalia for referral to the
International
Criminal Court and to the UN Security Council for incontestable
harsh punishment (**).
Compulsory acceptance or legitimate rejection with severe
consequences of a conflict-ridden
Constitution is an awful predicament that challenges the
conscience of many Somali
citizens.
However, an
examination
of just a few articles of the publicly available version of the
Draft Constitution, like on on the status of
Mogadishu, on the general provisions, on the election of the
president in a
parliamentary system, and on the original language of the
constitution as well
as the analysis of the political dynamics affecting the
constitution making
process, highlight sufficiently why the public strongly opposes
the Draft
Constitution. What is more troubling is that the final draft of
the constitution
is secret and not subject to public consultation before its
approval. The Draft
Constitution challenges Somalia’s will for nationhood. Status of
Mogadishu Article
8 stipulates that Mogadishu is the capital city of the Somali
Republic, while article
67 lists three options for the status of the capital in the
federal system. The
options are: (1) The capital
is located within a Regional State which has the power to pass in
consultation
with federal government a law governing the status of Mogadishu; (2) Mogadishu as
a Federal Capital District: The Federal Government passes a
special law. The
Citizens of Mogadishu will not send delegate to the House of
Regional States.
The Federal Government will play the dual roles of Federal and
Regional
Governments; (3) Federal
Capital as itself a Regional State. This option is unclear. As of today 8,
2012, the option and its formulation included in the final Draft
of the Constitution
is a mystery. Because of the impracticability of the concept of
federalism in
Somalia, the debate over the status of Mogadishu will continue
sine die. General
provisions of Chapter 16 Article
172 prohibits all constitutional amendments within the first seven
years after the
Constitution comes into force. Only the amendment intended to
facilitate the
participation of either or both Puntland and Somaliland as part of
the Somali
Republic is permissible. It is important to note the discrepancy
between the transitional
seven years in the Draft Constitution and the transitional four
years in the
Garowe Principles. Article
173 establishes that after seven years the parliament can amend the
constitution in
accordance with the recommendations of a parliamentary review
commission. This is
similar to the lax amendment procedure of the Transitional Federal
Charter (TFC).
Article 174 mandates that the
Draft
Constitution shall come into effect after 90 days of its approval
through
unspecified modalities. As of today 8,
2012, Schedule 1 and annex X of the Draft Constitution are blank
references to be
filled or to be developed (TDB). At the same time, Articles
175, 176, and 179 refer to that blank schedule 1 and annex X. Article
178 reiterates
the right of voters to express their views in the case of
hypothetical referendum
rather than addressing the required referendum as per article 11
(3) of the TFC. In the
next ten years, the Draft Constitution
will not be subject to popular referendum. Schedule 3
-Election of President in parliament system Any presidential
candidate must be nominated in writing by at least 10 members of
the House of
the People and must show support of at least one regional state
delegation to
the House of Regional States. Then, the members of the Regional
States are obligated
to vote individuals rather than as a delegation. Is this provision
feasible in
the presidential election in August 2012 and afterwards? During the
presidential election, it is required the presence of only 70 % of
the members
of each house. In other cases, there is no required quorum but
implicitly it
could be less than 50%. This constitutional provision encourages
irresponsible
political behavior. Original
language of Constitution What is more
astonishing is the absence of an article which establishes the
original
language of the Draft Constitution among the four languages:
Somali, May, Arabic
and English. Italian fell out of fashion.
Political
Dynamics affecting the Constitution Making Process On May 4, 2012,
the State Department of the United States of America issued press
release in
support of the threats made by friends of Somalia chaired by the
United Kingdom
Ambassador to Somalia, and by the AU, UN and IGAD in their joint
letter against
anyone including members of parliament opposing the Draft
Constitution. This act pays no attention to the following
well-reasoned conclusion
and recommendation made in a paper issued by the Horn of Africa
Steering Committee
of Woodrow Wilson International Center for Scholars under the
title, “ Pathways to peace
in the Horn of Africa: What
role for the United States?: “The
US government must recognize that its long term
interests are best promoted not by building relationships
with particular
regimes and/or political parties but by supporting the
legitimate rights and
aspirations of the peoples of the Horn.” As expected, the
President of the Transitional Federal Government (TFG), Sheikh
Sharif has ruled
out rejection of the Draft Constitution even if the latter is
against the
interests, sovereignty and territorial integrity of Somalia. Eng.
Abdirahman
Omar Yarisow spokesman of the PM Prof. Abdiweli M Ali made similar
threat to
the critics of the Draft Constitution labeling them as “spoilers.” The Minister of Internal affairs and Security Abdisamad Moallim
Mohamud has
banned holding political meetings in Mogadishu without his
Ministry’s
permission. The unalienable constitutional rights of free speech,
freedom of
association and assembly of the citizens of the “South Central
Somalia” have
been abolished. The concerned
citizens were shocked not by the actions of the leaders of the TFG
but by the anti
democratic stances of the international Community. There is
general consensus
that the top TFG leaders are determined to remain in their plum
positions for
the next seven years by complying with the instructions of
Ethiopia, UN Special
Representative and AMISOM Commander without concern to the
aspirations and long
term interests of their people and country. The
international community is fully aware of the fact that the dismal
cooperation and
smear campaigns going on between the top three TFG leaders have
crippled their
effectiveness, legitimacy and credibility. The Somali Website
Wardheernews
published two articles with pseudonym names: (1) PM
Abdiweli's
Achievements; (2) Is
President
Sheikh Sharif competent enough to lead? On his part, Inj. Yarisow
published a letter reported
in the AMISOM Daily Media Monitoring under the title: Somalia at
Cross Roads: Is
this time any different?. The aim is to create better
image for PM
Abdiweli’s TFG in comparison to President Sheikh Sharif’s TFG. Also, the call
by the UN expert on human rights for the International Community
and the TFG to
set up a legitimate justice system discredits the propaganda claims of progress in Mogadishu. In
support of the UN
expert’s note of the despicable injustice system in Mogadishu, the
Government
website reported recently that the Attorney General has issued an
arrest warrant
for the President of the Supreme Court on charges of corruption
and imprisonment of innocent
individuals or for the release of accused criminals from prisons
without court
process. The appalling scale of the injustices witnessed by the UN
expert is an
indictment of the TFG and the international community. It is said
loudly that
“where there is no justice there will be no peace.” General
observations The Traditional
Leaders and the illegally instituted Constituent Assembly have
been called for the
approval of an undeveloped and yet to be published Constitution as
of today May
8, 2012. This is the most egregious political attack perpetrated
against
Somalia’s conscience and patriotism. Probably, three international
bodies are
aware of the secret Constitution: (1) the United Nations (UN)
represented by
the United Nations Development Program (UNDP) which manages the
constitution
making process and the United Nations Political Office for Somalia
(UNPOS); (2)
the National Democratic Institute which works with UN; (3) The International
Development Law Organization
(IDLA) which implements the project called “supporting the
constitutional
Review process (CRP) in Somalia” financed
by the Italian Government. The
Independent Federal Constitution Commission and the Committee of
Experts are
temporary paid teams of the three international bodies. In realization
of Ethiopia’s political and security strategy towards Somalia,
Somalia will be
embroiled with chaos and dysfunctional governance arising from the
Draft Constitution
in the next seven years in which Somaliland and Puntland will
remain separate
entities. The Draft Constitution smashes Somalia rather than
repairing it. Somalia
deserves a better alternative.
________________________
Notes:
http://www.wilsoncenter.org/publication/pathways-to-peace-the-horn-africa-what-role-for-the-us
Somalia:
UN
Expert on Human Rights urges restoration of justice system
(*) The author,
analyst Mr. Mohamud M
Uluso,
can be reached via m
ohamuduluso[AT]gmail.com _____________________
From the article above it becomes obvious that now even
intellectuals feel threatened by this process, which obviously is
a repetition of the mistakes of former so-called
peace-negotiations for Somalia - all failed with dragging Somalia
deeper and deeper into the quagmire. The only difference here is
that the implementation is now carried out by a regional African
layer - to avoid that fingers are pointed at the real global
powers, who obviously want to keep Somalia in turmoil and the
Somali people without self-determination and justice. The
geo-strategic (regional security, maritime trade-routes) as well
as natural resources (oil, marine resources, incl. fish) interests
of the global players and their governmental, institutional as
well as corporate representatives obviously make them blind to the
fact that these provisions actually do address even those, who
issued the decree.
Reference:
(**)
1 May 2012 -
We have now entered a critical juncture of the transitional
period of the peace process in Somalia. As we move closer to key
benchmarks, such as the convening of the Constituent Assembly,
adoption of a new Federal provisional Constitution, selection of
a new Parliament, we remain greatly concerned that the Roadmap
continues to be jeopardized by the actions of individuals and
groups in and out of Somalia working to undermine the fragile
progress we have collectively made in recent months. We have
come too far and too much is at stake for us to allow the
process to backslide at the exact moment Somalia has its best
opportunity for peace in decades.
As you are all aware, by its resolution 1844 (2008), the United
Nations Security Council reaffirmed its intention, outlined in
paragraph 6 of UNSC resolution 1844 (2008) to take measures
against those who seek to prevent or block a peaceful political
process, who threaten the Transitional Federal institutions
(TFIs) of Somalia by force, or who take action that undermine
stability in Somalia or the region.
To this end, the United Nations, the African Union and IGAD
are jointly issuing this unambiguous warning to all potential
spoilers: non-compliance with or active obstruction of the
Roadmap for Ending the Transition in Somalia will be
referred to the IGAD Council of Ministers with our
recommendation for the immediate imposition of specific measures
and restrictions. Moreover, requests for further sanctions
against spoilers may simultaneously be referred to the United
Nations Monitoring Group on Somalia and Eritrea in order to open
an investigation under the terms of the United Nations Security
Council Resolution 1844 (2008).
In the coming weeks, we will be taking concrete action with
reference to the above. This communication shall act both a
warning and a final opportunity for those who stand against
against peace and progress in Somalia to cease immediately and
desist any and all actions against the Roadmap progress.
We urge you to join ongoing efforts to complete the roadmap
by 20. August 2012 and play a constructive role in the formation
of Somalia's new institutions.
Amb. Boubakar G. Diarra
Special Representative of the
AU Commission for Somalia
AMISOM
Dr. Augustine P. Mahiga
Special Representative of the
UN Secretary General for Somalia
UNPOS
Hon. Kipruto Arap Kirwa
Facilitator for Somalia
Peace and National Reconciliation
IGAD
----
N.B.: The world is used to hear such over- and under-tones only from extremely dictatorial regimes
- and one wonders, if the idea behind the invocation of these
broad threats and a flawed UN Security Council resolution is
not just an attempt to actually provoke widespread Somali
unrest against the undemocratically designed roadmap adopted
by the closed door Kampala process, because everybody can
foresee that the timetable and the agenda of the overlords and
their ghost-lordly masters will not be achieved. Pushing it is
making it clear, who the actual spoilers of a peaceful process
in Somalia are. A transitional process Somalia can over the
last 20 years only be observed in form of the transition of
the powers from local and economic warlords to religious
warlords and now to political warlords, who all hijacked and
jeopardized the free and fair peace processes and neglected
the will of the people for peace and prosperity - and still
do.
Meanwhile several ethnicities, especially from the so-called
minority people of Somalia, who outnumber the people of the
so-called majority-clans of Somalis in vast areas of the
country, have officially protested
against the injustice of their misrepresentation in this
process, because "representatives" have been placed by the organizers in the decision-making
talks, who do not represent their people, while the genuine
and elected traditional leaders are actually sidelined.
Madhibaan, Bajuni,
WaGosha and at least 10 other, genuine ethnicities suffer
persistently from discrimination and are still haunted in
Somalia - despite the fact that the international community
has the strict obligation to specifically protect them and the
rights of all indigenous people of Somalia. Pushed and crammed
into the 0.5 slot of the 4.5 representation agenda, they have
nothing to say and are not democratically heard, though
demographically they are the real people in large areas of the
country.
The so-called Roadmap thereby appears as a road to renewed
hell for all Somalis, except the few from
the Somali Diaspora, who come and go and
play opportunistically along.
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Draft Constitution challenges Somalia’s will for nationhood
By Mohamud M Uluso