UN Crafted Constitution has many Somali Watchers Bemused

July 2, 2012

Secretary-General Ban Ki-moon makes a statement at the pledging conference for Somalia. Photo by Mark Garten/UN Photo

On June 22, 2012 the Somali Roadmap (the process for ending the Transition) Signatories (SRS) signed a series of documents prepared by the Office of the United Nations Political Office for Somalia (UNPOS).

The documents, available here, (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); and (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 Decree

The provisions of the Decree include amendments to articles of the Transitional Federal Charter (TFC) for repeal, 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.

Crafted Process

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 and ends with the International Community and not from the Citizens of Somalia.

Protocols 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 the DPFC:

“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.

Lack of Political Unity

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 deaf ears.

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. Lack of deep understanding of the core constitutional principles and issues – federalism, democracy, political Islam, clan and civil war culture, foreign influences- contributed to the confusion in the draft constitution.

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 has been crafted through a UN constitutional process with little input from Somalis.

Article 1 declares that Somalia is a Federal Republic when almost all federal components (States) are nonexistent and the existing sample (Puntland) is 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 State (s) will be subject to their Constitutions and not to the provisions of DPFC. Somaliland is not part of the process.

In addition, the financial matters, natural resources and other issues fundamental for national State functions are constitutionally postponed.

So who will the Federal Government represent and serve?

The proposed concept of federalism for Somalia fails the test 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 has become an insurmountable barrier to the emergence of an effective National Government in Somalia.

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 the DPFC was an even greater political blunder.

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.

Articles 105 to 109 dealing with Judiciary and courts are imprecise and impractical.

Article 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 the Federal Government and Regional States when all regional States are established. This preempts the formation of a national government in the foreseeable future.

Article 199 (1) prohibits amendments on articles of the DPFC during the first four years.

Conclusion

The approval or rejection of DPFC by TLs and NCA has no relevance. It is just for public relation and legitimacy claim for a UN controlled 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 a Somali Constitution in the absence of true and verifiable national reconciliation, political will and constitutional framework to form a national government throughout Somalia. The phony constitutional process is being driven by the international community. Somalia deserves better treatment than the continuation of political chaos through UN tactics.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , ,