Draft Constitution challenges Somalia’s will for nationhood

Published On: Tuesday, May, 08 2012 - 13:20:43 This post has been viewed 1275 times

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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.”[1]

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.”[2] 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[3] 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:
[1] http://www.wilsoncenter.org/publication/pathways-to-peace-the-horn-africa-what-role-for-the-us
[3] Somalia: UN Expert on Human Rights urges restoration of justice system

(*) The author, analyst Mr. Mohamud M Uluso, can be reached via mohamuduluso[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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