In due consideration of
the widespread opposition to the draft constitution, the international
community and the Transitional Federal Government (TFG) should honor the opinions
of the concerned Somali stakeholders and desist from its ratification crookedly.
The 1960 constitution and the Transitional Federal Charter (TFC) provide
sufficient legal basis for the formation of new national interim authority
under the control of credible people’s representatives, Council of Elders and
Council of Experts before August 20, 2012 with the specific tasks of setting up
a sustainable and durable legal, political and institutional foundations for
the Somali State. The admirable role of the international community would be to
facilitate a process that celebrates new trajectory which completely ruptures
with the present approach based on taking advantage of Somalia’s misfortune.
There is no
justification for the ratification of the draft constitution at this juncture. Besides
the controversial articles on human rights, citizenship, borders, religion,
Mogadishu status, election of president and constitutional amendments, a review
of the articles related to representation, structure and relations between
various levels of government, and territory, illustrates further fatal flaws in
the draft constitution.
President Sheikh Sharif
Ahmed of TFG expressed publically his personal reservation on some articles of
the Draft Constitution. But for self-preservation, he denounced other opponents
for rejecting the draft constitution for the same reasons he held.
On May 4, 2012 Sheikh
Mohamed Abdi Umal, a well-known Somali Islamic scholar, delivered a powerful speechabout the unacceptability of the draft constitution. His critique centered among
others on three defects: (1) the secrecy surrounding the constitution making
process and the submission of the draft constitution to the traditional leaders
and Constituent Assembly without prior broad based public consultation and
scrutiny; (2) exclusion of the Somali Islamic scholars from the drafting and
consultation process of the constitution; (3) the lack of opinion of trusted
Somali constitutional experts on the text of the draft constitution.
On the same day, President
Dr. Abdurahman Mohamed Farole of Puntland State come out forcefully against the
draft constitution in a letter he sent to the key actors of the international
community- UN, US, UK, AU, and IGAD- in the constitution making process of
Somalia. Subsequently Puntland Administration submitted detailed amendmentssuperseding the April draft constitution.
In asking an urgent
meeting to be held in Addis Ababa or in Nairobi between the “roadmap stakeholders”
renamed “Somali Principals,” with the participation of key actors, President Farole
cited the following four reasons:
Draft Constitution is not suitable for a war-torn fragmented country like Somalia.
It is highly confusing, contradictory and based on centralized government
does not distribute power, resources and competence in service delivery fairly between
federal and state institutions.
drafting process was not inclusive, participatory and transparent. There was no
wider public consultation. TFG unilaterally appointed members of Independent
Federal Constitution Commission (IFCC) and Committee of Experts (CoE).
ability, expertise and representation of the members of the IFCC and CoE are unsatisfactory.
The lack of participation of constitutional experts blemished the draft
For self-acquittal, he
lashed out other opponents of the draft constitution for not seeing and reading
the April draft constitution he have seen, read and disliked because the latter
draft was only in the possession of the six roadmap stakeholders. He expressed
his support for the final warning of AU, UN and IGAD for punitive actions against
those labeled spoilers. This typifies classical hypocrisies marring the
credibility of Somalia’s leaders.
In nutshell, statementsa, c, and d summarize the
main reasons for the popular objection to the draft constitution with regard to
the legitimacy and integrity of the constitutional process and with regard to
the substance. These flaws cannot be redressed in a meeting in Addis Ababa or
In separate note, the
call of President Farole for a meeting in Addis Ababa or Nairobi shows the
level of distrust among Somalis. Some of the guiding principles of Puntland leaders
on the restoration of Somali State are: (1) The status of Mogadishu should
remain undecided; (2) Regional States (Puntland State) and Federal Government
are equals; (3) The Federal Constitution must conform to the Puntland Constitution
which is adopted and permanent; (4) Issues of citizenship, land, and natural
resource are matters of local responsibilities.
Chapter 6: Representation of the people:
In contrast to article
11(3) of TFC, the Draft Constitution does not mention the requirement for a
national census before undertaking national or local elections or distribution
of national resources.
Article 58 on international negotiations
Despite paragraph 3 of article 58 states that the federal
government shall regard itself as a guardian of the interests of the regional
1 requires consultationwith
and participation of the regional states on the negotiations in connection with
foreign trade, treaties or other major issues of international agreement.
authorizes the federal government to pass laws setting a framework and guiding
principles for local government. At the same time, Article
56 (g) and article 68 prescribe that
disputes between federal government and regional states should be resolved on
the basis of mediation, negotiation and the spirit of cooperation as two
neighbors by establishing special committees or boards. Puntland argues for two
levels of Government- Federal and State only, while the Draft Constitution
prescribes three levels-Federal, State and Local Government.
In accordance with Article 66, the federal government cannot give
directives to the Regional States for compliance with the constitutional
provisions unless the House of Regional States passes a resolution on the
Article 69 on state boundaries and article 70 on the creation of
69 (3) establishes
that state boundaries shall be based on the boundaries of the administrative
regions as they existed mainly before the 1990 civil war. In accordance with article 69 (3) and article
11 (2) of the TFC, Puntland loses the legitimacy of a Regional State.
Theoretically, Puntland comprises 5 regions but practically it has excluded
part of Mudug region like South Galkaio, Hobyo and Harardere districts while it
has annexed Buuhodle district which belongs to Togdheer region.
For the creation of new
states, it is required the compliance with four conditions:
minimum of two regions joining together with their free will. This condition
presumes the existence of a mechanism for the determination of the free will of
the people before undertaking the creation of new state. In addition, regions
can remain as regions not mentioned in the Constitution.
new state is not against the national interest; this national interest is not defined.
new state shall not jeopardize the national federal unity of the Somali
new state must have the capacity to discharge the functions and responsibilities
of a State within the federation, including the protection of the rights of all
citizens with the state economic self-sufficiency and the delivery of basic
These conditions are stumbling
block for the imposed creation of new regional states. It’s kind of vicious
circle. Thus, the persistence of confusion and bickering is assured.
Article 71 Admission of new members to the Republic
This article 71 as article 172reflects the presumption that the territory of the Federal Republic of Somalia falls between Mogadishu and Galkaio,
while Puntland, Azania, Bay-Bakol-Lower Shabelle (South West State), and
Somaliland will be additions to the federation in due
course. As paragraph 1 of this article makes clear, Federal Somalia (Central-Mogadishu)
will negotiate with other regions on their conditions and terms for joining the
The nature of the presidency
Article 94 paragraph 1
says that in order to strengthen the unity of the nation the two houses of
parliament shall endeavor to ensure that the office of the president is rotated
between different groups in society.
Office of the Attorney General
As per article 128, only
the House of Regional States selects one of the candidates proposed by the
Judiciary Service Council as Attorney General and the president shall appoint
that person without reference to parliament or to Council of Ministers.
Regional State Institutions
Under article 140, Regional State Constitutions will
establish the legislative and executive bodies of the governments
of the regional states. The state constitutions developed after the adoption of
the draft constitution will be referred to the Constitutional Court for
compatibility, while the federal constitution must conform to the existing
regional constitution of Puntland. No Federal Government can exist and function
before all regional states with their constitutions, parliaments and council of
ministers are established and the House of the Regional States is in place.
The outcome of the
constitutional process which was murky and outside the public radar from the
beginning is far from creating peace, stability, and development in Somalia. Given
the immense complications for implementing the federal system in Somalia, one
inevitable scenario could be that Somalis abandon the formation of national
government representing Somalia and allow local states represent their people
at all levels. However, National unitary Government with decentralized functional
integrity and reliable checks and balances is the best option for all Somalis. The
past should be a lesson for a bright future.
Mohamud M Uluso