Will the New Somali Constitution Deliver?

and 06.13.12

Will the New Somali Constitution Deliver?

and 06.13.12

The peace and reconciliation process in Somalia has entered a critical juncture. A new Constitution, drafted with the help of the United Nations Development Programme, is scheduled to be adopted in the next few weeks. Will the new Constitution help deliver peace to a country ravaged by more than two decades of civil war? The optimism of the international community is not shared by Somalis themselves, who instead look with deep skepticism at a document that they perceive as externally-imposed, faulty and fundamentally undemocratic.

To understand this dynamic, one should start by questioning the facts. What is wrong with the new Somali Constitution and why has the adoption of this document been met with resistance by educated Somalis, religious figures, secularists, former Somali Prime Ministers, women, scholars and by Somali Diaspora organizations? First, there are issues concerning the content of the Constitution and the substance of its provisions.

Above all, the question of federalism remains deeply divisive. Views can be found both in support of and against Somalia adopting a federal structure. Those against the shift to a federal state appeal to the homogeneity of Somalia’s population; the lack of resources (human and financial) which would be needed to run a federal state apparatus; the divisive potential of adding a territorial layer to an already complex situation. All in all, one crucial question remains disturbingly unanswered: why federalism? Why is the rocky road of federalism necessary and/or better placed to serve the purposes of institution building within Somalia?

Unless a convincing explanation is provided it seems impossible to discard the view, shared by many, that federalism is a means of serving foreign interests within Somalia. Another issue has to do with representation agreements for the new federal parliament to be created in August. The clan-based ‘4.5 formula’ elaborated at international conferences leaves Somalis deeply unhappy and suspicious towards a system that, in their view, enhances tribalism and destroys national unity.

Second, there is an issue of self-determination. Under international law, the right to self-determination gives the people of independent states the right to choose which political and economic regimes should form the very basis of their state structure. Ultimately, if federalism is to be adopted, the decision must be reached through a free expression of the will of the Somali people.

Initial plans to hold a referendum to consult the Somali people on the adoption of the new federal Constitution were discarded on security grounds. The document will now be voted by an 825-member Constitutional Assembly which shall, according to the transition agenda, be representative of the whole of the Somali people. Whether this is an acceptable standard under international law concerning self-determination is far from clear and a question which deserves further scrutiny.

Third, there are wider issues concerning the process through which the new Constitution has been drafted and surrounding both the way and the timing in which it will be adopted. Somalis rightly claim that this process is undemocratic, non-transparent, non-Somali owned and inappropriate to the ends it purports to serve. Some have asked ‘why’ a new constitution is to be drafted now, at a time when the country has no elected or truly representative body to oversee the process of its formation. At the very least, this is a legitimate question.

Somalia already has a legitimately adopted constitution, drafted in 1960 and adopted in 1961 through a national referendum. This document could be amended and used as the basis to drive the country though the transitional process until the security situation will allow for a constitutional referendum to take place. On the other hand, drafting a constitution which is not the result of peace-making but which is itself a constitutive act of peace-making is a bold experiment. Can it work? Possibly, but only as long as the premises on which the document is drafted are themselves an act of peace-making, and not an exercise in the usurpation of power. This cannot be said of the process, which has brought the new document into being.

The new Constitution will be brought to bear by a process which, in the eyes of Somalis, is affected by the very same flaws that it is supposed to address: lack of representation, divisiveness, detachment from the will of the people. Hence, is it reasonable to expect a constitution, drafted in the midst of conflict, under the lead of a desperately weak government and the heavy pressure of foreign interveners, to be successful in eliminating social distrust and lead Somalia towards representative democracy? Nation building is a complex phenomenon and its sustainability is inherent in democratic legitimation. Where its foundations are shaky, its future is at peril.

On the whole, the lack of a functioning government in Somalia is a problem both for Somalis and for the international community. The international community laments the existence of weak and ineffective political institutions and security apparatus. The Somali people, in addition, lament the inexistence of legitimate institutions to speak with their voice. The answer of the international community to their quest for legitimacy has been met with resilience. Benchmarks now, legitimacy later. The Roadmap is the document which set the priorities and time-framework for ending the current transition and its provisions are no longer re-negotiable.

The threat of sanctions against ‘potential spoilers’ aiming to obstruct the Roadmap and the peace process has thus given sharp teeth to an inherently flawed constitution-making process. In Somalia, the international community in assisting with establishing this process seems to have, once again, crossed the fine ‘Mogadishu line’ which separates assistance from interference. What comes next is a gamble: will the process of transition deliver? And if so, at what cost for the sovereignty, self-determination and political independence of Somalia? It is understandable that Somalis look at the new Constitution with scepticism and disenchantment.

The process which will bring this document into being falls short of international standards on self-determination and the rule of law. The answers to why adopting a new, federal constitution in a matter of weeks should be a step forward towards building peace in Somalia seem to be convincing for foreign actors but have failed to prove convincing for Somalis themselves. The question of legitimacy, therefore, remains an open one. The question of effectiveness, on the other hand, is what shall be watched closely in the years to come.

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