Since the Transitional Federal Government (TFG) was created in Djibouti in 2008, the International Community (IC) has consistently tried to make political change in Somalia without a clear strategy and participation from the local population. In 2011, the IC created a “Roadmap” that repealed the Transitional Federal Charter and federal institutions. In May 2012, without the consent of the Somali parliament, the IC took away the responsibility of the constitutional drafting from the Independent Federal Constitution Commission (IFCC) established by Somali parliamentary act and from the Committee of Experts (CoE). In July 2012, a pre-approved mandatory “Draft Provisional Constitution (DPC)” has been presented to the Somali people without the right to make amendments to the draft document or to reject it outright.
While the United Nations Political Office for Somalia (UNPOS) has overruled the proposals for amendments or postponement of DPC debate from the majority of the Somali leaders, a mysterious Technical Review Committee under the management of UN bodies and the International Development Law Organization (IDLO) which implements the Italian funded project for “supporting the constitutional review process (CRP) in Somalia” has been exercising the discretionary power of re-writing the DPC. 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 (UNPOS). Contrary to the baseless public statements of the representatives of the IC and the leaders of TFG, the post August government is another Transitional (Interim) Federal Government of four (4) years term.
To secure the overwhelmingly approval of the DPC, UNPOS used corrupt tactics like issuing misleading statements on amendments, forming pressure committees, shortening debate time, offering economic incentives, threatening with sanctions and forcing a vote on a loaded question as an approval of the DPC. UNPOS also announced in advance that even if National Constituent Assembly (NCA) rejects the DPC, the latter remains the law of the land. Thus, NCA members saw their restricted role on the wall and were ready to comply with it. The loaded question was, “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 to justice and lasting peace, pending final adoption at the referendum?”
The provisions of DPC instigate all sorts of negative social, political, security and legal drawbacks 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), protracted stalemate over the formation of Federal Member States (FMSs), corruption, terrorism and radicalism. Some of the factors that give rise to those negative developments are the imposition of federalism, creation of bogus FG and FMSs and litigious interpretation of the DPC provisions.
Imposition of Federalism
The Guide Book to DPC argues that some of reasons for the imposition of federalism have been the accommodation of an existing regional government –Puntland, the accommodation of the distinct regional needs of the Somali people, and implementation of shared rule (in central government) and self-rule (in regional government). At the same time, it is admitted in the Guide Book that the creation of FMSs has proved controversial during the constitutional conferences. Nevertheless, the IC deliberately disregarded the drawbacks of federalism for Somalia expressed by a large segment of the Somali population. The majority of the Somali people have never viewed federalism as a political system of governance suitable for Somalia. Alternatively, there has been quasi-unanimous consensus on democratic system of governance with effective decentralization based on system of governance that upholds justice, transparency and accountability.
Establishment of Federal Government (FG)
Because of lack of general consensus on federalism, DPC creates bogus FG without capital (seat of government), identifiable federal stakeholders, shared rule, shared land and financial resources, and ability to exercise practically any national political power. FG is deprived of the constitutional legitimacy of representing Somaliland and Puntland in the international arena. All those requirements are deferred to negotiations between FG and the non-existing FMSs supposed to be created by FG not fully recognized by the existing FMSs. DPC forces the worn-torn Somalia to establish unsustainable parallel structures of system of governance. Due to lack of shared rule at national and local levels, territories and people under FG rule will more likely suffer exploitation, political and economic mismanagement, violence and foreign military occupation.
Creation of Federal Member States (FMSs)
Only two regional states claim status of FMS based on their local constitution. They are the overlapping states - Somaliland and Puntland. These two FMSs retain and exercise their powers on the basis of their State Constitutions independently from the FG. Given Puntland as a model for the creation of FMS, DPC encourages the emergence of mini-states throughout Somalia, which could lead to social tension and long-term instability. DPC grants special constitutional rights to non-existing FMSs. First, each FMS enjoy independent decision making process from the FG while the latter must consult with each FMS in its decision making process in regard with federal tasks, security arrangement and foreign affairs.
Second, each FMS could establish its citizenship status despite DPC says National Citizenship is indivisible. Third, existing FMSs are exempt from the financial contribution to the budget of FG’s representation of all Somalis. Residents of the regions without FMS bear FG’s financial burden. Fourth, each FMS independently pursues its foreign interests.
Fifth, each FMS has the freedom to formulate its own land policy and establish its state police force. Sixth, FMSs are exclusively empowered to develop the status, structure and competences of local governments, and any further political and administrative decentralization deemed necessary in their own State Constitutions without consultation with FG or reference to DPC. Seventh, each FMS will have its independent judiciary system. That will introduce dual system of justices. Hierarchy between central and regional governments is reversed. Different institutions and authorities claim the right of representation of the Somali people.
Contrary to the unfounded claims by the TFG leaders, the next parliament does not have the ability to amend the DPC. On paper, PDC provides two cumbersome processes for constitutional amendments. In any case, amendments to DPC require 2/3 of the members of a non-existing Upper House of FP (representing the FMSs). This situation prohibits any type of amendment to DPC at least during the FG term.
Litigious Interpretation of DPC
The interpretation of DPC articles about religion, equality, personal freedom, territorial integrity, sovereignty, independence, citizenship, federal government, FMSs and supremacy of international law over Somali law has stirred intense disagreements rather than promoting harmony and reconciliation among Somalis. Moreover, on one hand, the provisions of DPC encourage conflicts between Somaliland and Puntland for land dispute, while on other hand de-legitimize their existence.
Somalia has been subjected to a constitution making process never seen in the recent history. The demand of the Somali people for ownership of the process has been treated with contempt. The DPC is imposed solution on Somalia with intimidation and corruption. In the absence of political accord among concerned citizens and functional government, especially justice and security system throughout the country, the provisions of unlimited freedoms, economic and social entitlements and gender agenda are ineffectual. Most probably, it will instigate challenges that could halt or delay the march towards peace, stability and progress in Somalia.