Somalia: No justification for ratifying the Draft Constitution

Somalia: No justification for ratifying the Draft Constitution

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 speech1 about 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 amendments2 superseding 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

Sheikh Mohamed A Umal’s speech about the draft constitution
Constitutional Amendments submitted by Puntland

Article (59) 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 subject.

Article 69 on state boundaries and article 70 on the creation of new state

Article 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:

(1) A 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.
(2) The new state is not against the national interest; this national interest is not defined.
(3) The new state shall not jeopardize the national federal unity of the Somali republic.
(4) The 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 services.

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 172 reflects 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 federation.

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.

Mr. Mohamud M Uluso

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