The International Community (IC) has delivered
a pre-approved mandatory “Draft Provisional
Constitution (DPC)” to 135 “Traditional Leaders (TLs)” and 825-member “National
Constituent Assembly (NCA) with the official message that both groups are not
allowed to make amendments to the draft document or to reject it. The UN-led
Constitution-Making Process for Somalia could be described all but “legitimate,
accountable, transparent, participatory, inclusive and most importantly
Somali-led” as claimed by the Special Representative of the UN Secretary
General (SRSG) and head of the United Nations Political Office for Somalia
From the beginning, the Constitutional
process has been funded, managed and controlled by the IC through United
Nations bodies and the International Development Law Organization(IDLO) which implements the Italian funded project for “Supporting the Constitutional Review
Process (CRP) in Somalia.” On July 23, UNPOS released a revised
version of DPC previously signed by the six (6) signatories of the Roadmaps
process in Nairobi, Kenya on June 23, 2012. It issued a new Guide Book explaining
the contents of the DPC. Additionally, for surprise reversal of position, the
SRSG announced the increase of the number of Members of People’s House of Federal
Parliament (FP) from 225 to 275 members.
Two mysterious committees- a Technical
Review Committee and a Transitional Federal Government (TFG) Joint Implementation
the discretionary power to amend continually the DPC while UNPOS has brazenly
overruled the proposals for amendments or postponement of DPC debate from the
majority of the Somali leaders. The Minister for Constitution, Federalism and Reconciliation,
Hon Abdurahman Hosh told the NCA members in clear terms that they should not
waste their time studying the already pre-approved mandatory Draft Constitution
and they should applaud for the work done as a sign of appreciation. Otherwise
NCA members could be labeled as “spoilers.” UNPOS has predetermined that just
one-fourth of 825 NCA-member is needed to vote on a loaded question. Even if
NCA rejects it, DPC remains the law of the land. Somalia has been subjected to a
transitional system of governance and to a Constitution-Making process never
experienced in recent history.
The latest version of DPC contains 143
articles and its predictable effect is the “End of Somalia as a country and people” and “not the End of Transition period for permanent system of
governance.” The provisions of
DPC promote all sorts of problems and political dynamics such as social fragmentation
and conflicts, secession or separation, foreign claims over Somali territory,
primacy of international laws over Somalia laws, long term foreign military
occupation, installation of bogus Federal Government (FG) and protracted
stalemate over the formation of Federal Member States (FMSs).
Salient provisions of the DPC
The Guide Book which explains main salient
provisions of the DPC outlines the followings:
1)Federalism: DPC prescribes a
Federal system of government (Federalism) for Somalia for three reasons:
(a)To accommodate the
existing regional governments, specifically Puntland or GalMudug; No mention of
(b)To accommodate the
distinct regional needs of the Somali people. This Somali distinction echoes
Ethiopia’s strategic perspective towards Somalia.
(c)To implement shared
rule (in central government) and self-rule (in regional government).
2. Noted Problems of
Federalism in the Guide Book:
(a)The creation of
FMSs proved to be very controversial issue during the constitutional
conferences. The responsibility for establishing FMSs has been invested in the
the House of the People of FP subject to the recommendations from an Independent
Commission on Boundaries and Federation.
(b)The allocation and
regulations of natural resources, public finance and tax raising powers are
still subject to negotiations between FG and non-existing FMSs. In accordance
with article 50 (b), DPC requires in anticipation that governmental functions are exercised and taxes are being collected at the
level of government where they are most effectively being exercised or raised.
The interpretation of this requirement is open for dispute. Also, each FMS has the
freedom to formulate its own land policy
affairs, national defense, citizenship and immigration, and monetary policy shall
be part of the remit of the FG, existing FMSs (Puntland) retain and exercise
their powers on the basis of their State Constitutions independently from the
FG. Yet, FG must consult at all-time with FMSs on matters related to
federalism, security and foreign affairs.
exclusively empowered to develop the status, structure and competences of local
governments, and any further political and administrative decentralization deemed
necessary through their own State Constitutions without reference to FG or DPC.
3)Independent Commissions: DPC creates Independent
Commissions, which shall be bodies operating separately from government or
political control to handle specific governmental functions.
4)Civil Servants: DPC regulates only
FG civil servants.
5)Judicial System: DPC provides
three different levels of courts: (1) Constitutional Court, (2) FG Courts, and
(3) FMSs Courts.The Constitutional
Court and the FG level Courts will be administered by the Judicial Services Commission
(JSC). FMSs Courts will be administered by Institutions created by FMSs Constitutions.
6)Peace, Security and Defense: FG is responsible for the guarantee of the
peace, security and national sovereignty of the FG. However, each FMS is
entitled to establish its own FMS’s police to protect the lives and property of
its people alone or in cooperation with the federal police force.
7)Representation: The parliament of
each FMS represents its population. Members of the People’s House of FP
represent the entire population of the Federated FMSs. Then, the Upper House of
FP represents FMSs. These complicated representations for Somalia need separate
8)Amendments: There are two
processes for constitutional amendments. One process is to be followed in the
period before the popular referendum on DPC and the other one is to be
practiced after popular referendum. In any case, Amendments to the Constitutions will require
2/3 of Upper House of FP which does not exist. This situation prohibits
amendments of any type to DPC.
9)Effect of DPC. DPC comes into
effect at the conclusion of the NCA 9-days conference in
Implications of the salient provisions of
Guide Book omitted the discussion of certain controversial provisions of the
DPC. Some of those
1)The philosophical interpretation
of the articles 2, 11, 17, and 18 all related to religion, equality and
personal freedom. Similarly the Guide Book did not clarify the contradictions
between articles 53 on International negotiation and 54 on allocation of
2)The reasons for eliminating
functional relationship between the President and the Upper House of FP.
3)The reasons for the
subjection of the Somali territory to international dispute as per article 7
behind the supremacy of the international laws and the laws of other countries
over the Somali Law in all matters as per article 40 (2) on the interpretation
of the fundamental rights.
and dynamics causing the End of Somalia
(a)Federalism for Somalia
has never been thoroughly debated among Somalis for their long term unity,
stability and prosperity. That is why there is no legitimate consensus on the
issue since 2002. Alternatively, there is quasi unanimous consensus on
democratic system of governance with effective decentralization based on the
distribution of finance, services, development and political power. Forced
Federalism is unworkable and counterproductive.
(b)DPC creates bogus FG
without stakeholders, financial resources and ability to exercise practically any
national political power. It also creates parallel federal, state and local systems
of governance without national hierarchies and accountability. To the detriment
of national unity, infinite FMS(s) Presidents, Council of Ministers,
Parliaments, security forces, civil services and independent judiciary
structures will sprawl all over. In a historical time when the international
assistance has dwindled and the motto is for small Government at all levels,
DPC forces the worn-torn Somalia to establish unsustainable structures of system
of governance without allocation of power, financial resources and massive
(c)DPC grants five
special privileges to FMSs. First, each FMS is independent from the FG. Second,
FG must consult with each FMS in its decision making process regarding federal
system and security arrangement. Third, each FMS’s citizenship is recognized
despite DPC says National Citizenship is indivisible. Fourth, existing FMSs are
exempt from the contribution to the costs of FG’s nominal representation of all
Somalis.Residents of non- existing FMSs
bear FG’s financial burden. Fifth, each FMS independently pursues its foreign
interests. There are no reciprocal privileges from FMSs towards FG. FMSs
dominate FG.This mirrors the ideas behind the failed US articles of
confederation of 1781.
people under FG rule will more likely suffer exploitation, political and
economic mismanagement, violence and foreign military occupation.
Puntland as FMS could intensify conflict between Somaliland and Puntland. At
the same time, the exclusion/exemption of Somaliland from the coverage of DPC
will legalize its secession from Somalia. In addition, the acceptance of Federalism
based on 18 regions de-legitimizes the existence of Puntland and Somaliland as
FMSs. These contradictions undermine national dialogue for genuine national
accord and reinforce national fragmentation.
(f)Given Puntland as a
model for FMS, DPC encourages the daily emergence of mini-States throughout
Somalia which could lead to social tension and long term instability.
(g)DPC deprives FG of
the constitutional legitimacy of representing Somaliland and Puntland in the
(h)FP has no power in
exercising constitutional amendments, given the inexistence of the Upper House
of FP, and other restrictions built in the DPC for proposing, drafting and approving
amendments before and after popular referendum.
The Somali people have been denied the
right and opportunity to participate the UN-led constitutional making process and
their demand for ownership has been treated with contempt. The DPC is imposed
on Somalia with intimidation and corruption. To some extent, the negative attitude
of the Somali intellectuals has encouraged the IC to invest the national
political power in six (6) individuals without legitimate representation and to
organize show conferences of TLs and NCA without legitimate purpose. Nevertheless,
PDC instigates challenges that could halt or delay the march towards peace, stability
and progress in Somalia.
Mr. Mohamud M Uluso