available in this link Documents
signed in Nairobi Kenya on June 22, 2012, are (1) Somali Transitional Government Decree (Decree),
(2) protocol establishing Somali National
Constituent Assembly (NCA), (3) protocol
establishing Somali New Federal Parliament (SFP), (4) Protocol Establishing the Technical Selection Committee (TSC), (5) Protocol Establishing the Signatories
Technical Facilitation Committee (STFC), (6) Draft Provisional Federal Constitution (DPFC) which entered into
force on June 22, 2012. These documents except the DPFC are written in English.
Even the DPFC is evidently translated from English. UNPOS throttles Somalia.
The provisions of the
Decree include amendments to articles of the Transitional Federal Charter
(TFC), the dissolution of the Committee of Experts (CoE) and the Independent
Federal Constitution Commission (IFCC), the adoption of protocols establishing
TSC, STF, NCA, the establishment and dissolution of NCA after voting on the
DPFC, the dissolution and transfer of power from the Transitional Federal
Government/Institutions (TFG/TFIs) to SRSG and SRS as the authority responsible
for the transition, and finally the request to UN to assume the
responsibilities of supervising the transition process, the new parliament and
the review process of the provisional constitution during the new parliament
term. Paradoxically, the Decree mirrors the October 1991
Charter of the Supreme Revolutionary Council (SRC) led by Gen Mohamed Siad Barre.
The Charter dissolved the Parliament, the Supreme Court and suspended the Constitution,
and enacted the transfer of power to SRC.
After the Kampala Accord
and the Roadmap Agreement, the TFIs ceased to function and operate under the
TFC as national acceptable Institutions by the International Community. Thus,
TFI leaders- freed from the local acrimonies, made accountable to UNPOS, IGAD
and AMISOM and ordered to stop public squabbles among themselves- concentrated their
attention on their personal affairs, interests and ways to secure the favor, support
and protection from SRSG and from foreign leaders whose forces are in the
country-Kenya, Djibouti, Burundi, Ethiopia, and Uganda. In Somalia, the source
of political power, legitimacy and financial support originates from and ends
with the International Community and not from the Citizens of Somalia.
of STFC and NCA
The STFC whose members are unknown except Minister A. Hosh took
over the role of IFCC after the Addis Ababa SRS Consultative Meeting in May
21-23 2012 and prepared the signed Draft Constitution. It is also responsible for
the adoption and publication process of the text. Last but not least, its work will
continue in the next four years. The Committee’s Chairman, Mr. A. Hosh will
chair the NCA proceedings and will appoint other Chairs.
STFC protocol says that STFC members should not have
personal political ambitions and not currently serving the TFG bodies. But
Minister A. Hosh, chairs STFC and manages the proceedings of the NCA.
The protocol establishing the NCA contains incompatible
directives. First, it establishes that the Traditional Leaders (TLs) will
select members of NCA and SFP in consultation with their clans and communities.
Second, it says that TLs have to select those members from among persons whom
the TSC vetted against required criteria. These are incompatible directives.
Finally, it is worth noting that the plenary meetings of NCA
require the presence of 450 members out of 825 members and decisions shall be
taken at 50 % plus 1 of present members. This means that only 226 members of
NCA are sufficient to approve the DPFC.
NCA will vote on the following question in order to approve
”Should this draft
provisional constitution be provisionally adopted to provide for a better
Somalia, help reconstruct our country, and set us on the right path and lasting
peace pending final adoption at the referendum?”
The sugarcoated words in the question are “provisional constitution”, “provisionally adopted”,
“pending final adoption”- (probably after
many years) and “a better Somalia.” The
question masks the phoniness of the constitution and presumes certain level of
inattentiveness and weariness of the public that will put pressure on NCA
members for nod. But many could see and learn the kind of subterfuge employed.
Absence of political determination for national unity and
The DPFC is not
drafted in due consideration of Somalia’s culture, history, aspirations, and objective
situation. For example, more than 300 Somali civil society gathered in
Istanbul, Turkey recommended a national dialogue over federalism to determine
its basic operational principles. Unfortunately, this recommendation fell on
On a scale of 1 to 100
percent, DPFC could not be rated more than 35-40%. The repealed TFC was far
better than the DPFC.
TFG President whose
single responsibility was to defend the respect and compliance with the TFC,
rule of law and good governance norms transgressed his authority by signing
phony constitution. It is also an irony to note that the DPFC is not regulating
the current transition process as well as the political dispensation expected
to come out from it.
The main reasons behind
this conundrum are the absence of general political will and agreed upon vision,
and the lack of real concern for national interests among the gang of six as
well as the lack of credible constitutional making process for preparation and
public participation. The gang of six is getting free ride against the best
interests of the Somali people. It is mindboggling why the UN and international
community squandered time and resources for 7 years on constitution that has no
reference and applicability to the current transition and to the next political
dispensation and problems.
Deficiencies in DPFC
The following comments
illustrate the deficiencies in the DPFC.
The DPFC is composed
of 210 articles and two annexes. But 68 articles starting
from 131 to 198 are
yet to be drafted. Therefore, DPFC is not a serviceable constitution because it
is not even at rough draft stage, lacks stakeholders, legal principles, language,
clarity and style. It is full of errors, duplications, and contradictions.
Therefore, DPFC is a phony constitution crafted through UN rigged constitutional
1declares that Somalia is a Federal Republic while 95 % of federal components (States)
are inexistent and the existing samples are unwilling to submit to the jurisdiction
of Federal Government. Article 208 (1) prescribes
that until all States of the federal governments are established, the existing
States-Somaliland, Puntland, Galmudug, Himan and Heeb, and Azania, will be subject
to their Constitutions and not to the provisions of DPFC. In addition, the financial
matters, natural resources and other issues fundamental for national State functions
are constitutionally postponed. So, who the Federal Government will represent
and serve? and how?
The proposed concept
of federalism for Somalia fails to tests
based on Islam, national interests, regionalism, clanism, citizenship, politics
and economics. In an open debate, this can be easily demonstrated. Foreign-driven
clan-based Federalism became insurmountable barrier to the emergence of
effective National Government in Somalia.
7 (3)legitimizes the claims of international dispute against Somalia’s territorial,
maritime and air borders. The inclusion of this provision in the DPFC
represents treason. The illegally toppled TFG parliament rejected twice this
kind of claims and overtures.
Article 9 (1) confirms that the Capital
(seat) of the Federal Government is undetermined. This means that the
Federal Republic of Somalia has no capital in accordance with DPFC. If this is
for undisclosed Somali interests, the signing of DPFC was even a greater
Article 21 on the freedom of movement and right to residence is
against the principles of the proponents of federalism. At this juncture,
residents in Somalia are either Citizens of “Regional State” or of “Clan.”
Article 28 (5) about the consent of marriage does not define the required
age in accordance with the Islamic principles.
Article 45 annuls the provisions of Article
51 (g) which prescribes fair distribution of resources among Citizens.
Article 49 (2) denies the legal existence of one region since there is
only two levels of government- Federal and State, while article 50 (4) recognizes the existence of 18 regions as at
the end of 1990.
Article 56 prescribes the numbers of MPs of People’s House as 225 MPs and
of the Upper House as 54 MP. Understandably, the TLs suggested 275 MPs for
well-motivated political reasons. Furthermore, the LTs proposed that the 135
TLs are seated in the Upper House. Unfortunately, the PM rejected both suggestions
out of hand. This shows lack of inclusivity and public participation, and disrespect
towards the TLs. DPFC is a foreign document dictated by aliens.
In electoral system, it is impossible to implement the
provisions of Article 65 (3) which requires
that the representation in the Parliament among various social groups is
balanced. Similarly, the requirement of article 73
(b) consisting in equal numbers between states is not possible if the system
is based on number of regions. State of
three regions will have more representatives than State of two regions.
Article 68 is ridiculous because it says that parliament can be
dissolved if it doesn’t approve Government Cabinet. The Parliament has the
power of rejecting government with legitimate vote.
Articles 70 (5, 6) and 64 all concerning on the legislative powers and
functions of parliament need substantial revision and harmonization.
Articles 105 to 109 dealing with Judiciary and courts
are imprecise and impracticable.
Articles 110 to 114 deal with 13 independent institutions.
The coordination and relationship of the functional responsibilities between
Federal Government, Regional States and Independent Institutions in DPFC is poorly
Against Article 121 whichrequires the harmonization of federal and state
120 affirms the exclusive rights of States to regulate their
parliamentary and executive institutions in their State Constitutions.
Constitutions of the existing Regional States override DPFC provisions.
Article 122 prescribes that financial matters will be negotiated between
Federal Government and Regional States when all regional States are
established. This preempts the formation of national government in the
Article 199 (1) prohibits amendments on articles of the DPFC during the
first four years.
Articles 199 to 210 concerning on the general
transitory provisions and the annexes A and Bfocusing on the amendment process all are too confusing and in conflict with
parliamentary powers and functions.
The approval or rejection
of DPFC by TLs and NCA has no relevance. It is just for public relation and
legitimacy claim for rigged process. The UN, with substantial financial
resources at its disposable, formed multiple committees in order to influence
the SRS, TLs and NCA and control the outcome.
It was and still is
wrong to draft Constitution in the absence of true and verifiable national
reconciliation, political will and constitutional framework to form a national
government throughout Somalia. The phony constitution is forced on Somalia’s
throat. Somalia deserves better treatment than the continuation of chaos and
political mishaps through UN apocryphal tactics.
Mohamed M Uluso