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The Somali Consultation Draft Constitution, which was published in July 2010, has been at the center of a debate that has gone through an evolution itself. The UNDP established an office to support the constitution writing process, and coordinates the activities of the Independent Federal Constitution Committee.
This NCF public forum aimed at soliciting the public opinion and input to the consultation draft constitution, and gathering information on the issues of contention the people might have identified. The discussions revolved around the constitution-making process which many of the participants believed that it was not transparent enough and that the Independent Federal Constitution Committee does not have the right mix of relevant knowledge and motivation since the process was nothing more than another employment generation initiative.
The consultation draft constitution was drafted based on incorrect and incomplete assumptions that ignored the key players in the Somali power struggles. The issues of contention such as federalism and the notion of the greater Somalia have not been considered. The whole process was undertaken without the future and its implementation in mind.
Technically, the consultation draft constitution has so many contradictions and ambiguities, while certain articles seem to be out of context. This is a clear indication that the language of the constitution that is English was copied from other countries’ constitutions and then translated to Somali. The participants and NCF proposes that the first language of the constitution be Somali for it to be realistic and representative of the Somali culture and political context. Other versions in English and Arabic may be drafted later as translations of the original.
These and many other issues have been brought to light by this NCF panel discussion which will be followed by another one where each of the 16 chapters of the consultative draft constitution will be studied and analysed thoroughly. This report and the discussion attempts to capture the general feeling and opinions surrounding the draft.
Introduction
The discussions on the consultative draft of the Somali constitution dominate not only the media and the political circles but also the conversations of almost all the Somali communities across the world. The debate, a specialty of the Somali community, ranges from whether the people need it, if it is time to talk about constitution, if it is ever going to be effective or make any sense; some even goes so far as to question its legitimacy or sometimes ask who is going to implement it and how.
The Nation Civic Forum, exercising its mandate to generate and disseminate creative ideas that address the economic and social development issues of the Somali people organized a panel discussion to debate the newly-published consultation draft constitution of Somali on September 25, 2010. The goal was to solicit the opinion of the public about this draft generally, and to identify the controversial articles and/or clauses that they could recognize without so much of a research and deep study, and to give the necessary feedback to the drafters thereby fulfilling a civic duty and responsibility.
Any manmade constitution is prone to errors and misinterpretations. The current status of the constitution is that it is a consultation draft which calls for the group effort of scrutinizing it, and make the necessary recommendations that will lead to its rectification to a product suitable for implementation. It is also important to look into its future impact on the Somali people on the long term, especially its effect on the current situation. A key issue that is controversial and also debated on by some Somali Muslim scholars is the belief held by some of the Somalis that man-made constitutions are generally against Islamic principles.
This panel discussion brought together experts and individuals who have been following the latest developments regarding this consultation draft of the constitution, which have recognized the magnitude of the topic and agreed to conduct this panel in two phases; the first phase – which is covered by this report – will seek to gather first-reaction opinions and insights from the participants, and will serve as an introduction to the second phase which was scheduled seven days after the first meeting. The participants were divided into five groups each of which was assigned two to three chapters of the total 16 chapters of the consultation draft of the of the constitution to identify any gaps and contradictions found throughout their in-depth study of the constitution.
This report captures the essence of this public forum, and also serves as a background for the second phase of the continued discussions on the constitution. The recommendation presented herein will also form the basis of the final recommendations that NCF will present to the constitution committee.
Brief Background on the Somali Constitution
When the Somali people got their independence in 1960 from the colonists, the first civilian government adopted the constitution written by the Italian colonists. This constitution which was enacted on July 1st 1960 and amended on December 31, 1963 was the first for the fledgling nation (a brief intro on the main characteristics of this constitution).
In 1969, when the military regime overthrew the democratically elected civil government, it followed the same constitution, but used it own interpretation which did not allow the existence of parties. This translated into the inexistence of a constitution for the next ten years. The first constitution written by the Somali people that also did not allow civil liberties, political parties or free elections was drafted by the military regime in 1979. This led to the up rise by many opposition parties and armed rebellion in 1989, most prominent of which were the United Somali Congress, the Somali National Movement, and many other countless three-letter abbreviations that eventually tumbled the military regime in 1990.
For the next ten years, chaos and anarchy ruled the Somali people; the political landscape saw the emergence and fading out of so many political alliances that had no agenda besides having a role in any governing body that was to be established. By mid 1995, Somaliland announced its separation from the greater Somalia and developed a constitution of its own which is believed to be founded on the 1960 constitution. Puntland followed suit and established itself as a state government although it hasn’t yet proclaimed its independence as Somaliland did.
Between April and May 2000, the Transitional National Government was established at the Somalia National Peace Conference in Djibouti where Abdiqasim Salat Hassan was elected president; this was followed by the Somali Reconciliation Conference in Eldoret, Kenya in 2002 and the rise of an opposition group known as the Somali Reconciliation and Reconstruction Council (SRRC). The TNG and SRRC were later reconciled; and a new united body was formed and named the Transitional Federal Government (TFG) in November 2004. During this period the Transitional Federal Charter was drafted and whose the main reference was the 1960 constitution. The constitution written by the colonists had the answer for anything that the charter does not address, as it explicitly stat in Article no. 71, clause no. 2. “The 1960 Somalia Constitution and other national laws shall apply in respect of all matters not covered and not inconsistent with this Charter.”
A similar charter was drafted in Mbagathi, Kenya by the SRRC between 2001 and 2003 which was to be used among the arsenal of this opposition group against the TNG.
The Making of a New Constitution
The 2004 Transitional Federal Charter requires a Transitional Federal Constitution to be drafted within two and half years of the formation of an Independent Federal Commission. The Independent Federal Constitution Commission was appointed in June 2006 and mandated to prepare a constitution based on the said Charter while ensuring the participation of the people in the process. The Commission is comprised of 29 members whose, selection is believed, not to be based on any standard criteria that ensures the right distribution and representation from all walks of the society and professionals who are well-versed with the issue at hand. The process of their selection was not as transparent as it ought to be, considering the importance of a national constitution.
According to the architects of this constitution and the bodies working on it, the vision of the consultation draft is to use it to strengthen the sense of belonging to one common political community, which is a very ambitious goal considering the current circumstances whose enabling factors have still not been addressed.
The Commission and other proponents of the new constitution expect it to reconcile and bring the people to a common cause, and end the long conflict and strife Somalia has been in for a long time; however, a large portion of the same people believe that it is not the time for a constitution as they are still struggling with the more basic needs of safety and security. The situation is best described as a chicken and egg problem; while the latter group feels that safety and security are prerequisites to any rule of law being of essence, others think that having a constitution is fundamental to creating harmony among the people and therefore ensuring safety and security.
The new consultation draft of the constitution was written in three months and published in July 2010 under the auspices of the UNDP Somalia Constitution-Making Support Project (SCMSP) – a fact that drove many people into believing that this is an externally-driven effort and the national constitution of the country was nothing more than a project funded by the US and the European Union.
The Constitution and Islam
Although the Consultation Draft Constitution proposes a constitutional framework, consistent with the principles of Islamic Shari’ah, based on the separation of powers, good governance, constitutionalism and the rule of law, there has been a short-lived debate on the validity of a constitution other than the Heavenly constitution mandated by Allah in the Holy Quran and the Sunnah of the prophet. Islamic scholars cite evidence from the two key sources of Islamic Shari’ah (the Quran and the Sunnah) that the creation and adoption of a manmade constitution is accepted as long as it does not contradict with the Shari’ah principles. They also cite the history of the Islamic Khilafah where some of the issues presented in the constitution such as democratic elections have been held.
The Consultation Draft Constitution indicates that Islam is the religion of the Republic in article no. 2, clause no. 1., and all the articles and clauses comply with the Shari’ah.
General Criticisms of the Consultation Draft
The participants identified and agreed on the existence of the following undesirable issues in the Consultation Draft Constitution:
1. The Constitution-Making Process had been associated with the following flaws:
a. The process was an externally-driven one, funded by a certain group of governments which makes it vulnerable to loss of integrity and credibility as these governments have their own agendas to stand by
b. The Independent Federal Constitution Commission is not so independent after all, and the process of selecting its members was not transparent to the public
c. Although the need of a constitution is unchallenged, the timing of the constitution is seen as unsuitable considering the peace and stability which are prerequisites for drafting a constitution are lacking. It is also said to violate the same guidelines the UN has set for the timing of drafting a constitution, which is only after a long-term peace agreement has been signed
d. The consultation draft constitution was prepared without considering the means of its implementation, especially when the country is politically and administratively divided
e. The constitution-making process is based on assumptions that federalism is the panacea of the current political crisis facing the country, ignoring the proposal of over 60 Somali scholars that were brought together to discuss the alternatives of Federalization and Decentralization – an effort tarnished by the TFG and the UNDP which sponsored the program in the first place
2. The consultation draft constitution has serious ambiguities and gaps, especially, in regards to the key issues concerning the long-term conflict resolution. These issues include:
a. The federal system and the sharing of resources among the member states have not been addressed
b. The issue of greater Somalia, and especially the proclaimed independence of Somaliland has not been addressed
c. The job description and criteria of the top executive positions are incomplete
d. The issues of the national commissions and the size of the various organs (such as the parliament) have not been explicitly and concretely stated
e. The consultation draft constitution does not include anything on the necessary conflict resolution processes and approaches; this is related to the resource sharing issues which cause conflicts, especially under the federal scheme
f. The draft lacks clauses specifically addressing the establishment of political parties and their manifestos
g. The issue of gender equality, especially participation in the governance process and the government bodies has not been addressed as well
3. The Consultation Draft Constitution contains some contradictions
a. The article on the Somali citizenship which includes a clause (no. 1) to the effect that a person must be born in Somalia to be a Somali contradicts with the second clause which says a person born outside Somalia is a Somali citizen if either one of his parents is Somali, or if he is of a Somali origin.
4. The linguistics and the technical aspects of constitution-making
a. Some of the participants who have read other constitutions suggested that the Consultation Draft Constitution contains directly copied articles and statements from the Kenyan constitution. This comes to no surprise as the key technical people selected for the project are Kenyan constitution writers. It has been identified that the article on Citizenship is a copy and paste from the Kenyan constitution.
b. The language used to draft the consultation draft constitution is not of the required level and unsuitable for a legal document of its importance, especially the Somali version
5. The Consultation Draft Constitution ignores the political forces that are currently in play in strategic parts of Somalia including Al-shabab which makes its implementation impossible under the circumstances
The Way Forward
This public forum was an introduction and a prelude to the next phase of the same discussions which will be held on October 9, 2010. The participants and the organizing committee of the NCF drew out a plan to study the whole constitution, where the participants have been grouped into six teams, each of which will take two to three of the total 16 chapters and revise the constitution for omissions or contradictions against the generally held beliefs.
Although all the participants were not all well-versed in the law, the constitution is a matter that concerns every individual. The goal of the consultation draft constitution is to be readable by every learned Somali as it is written both in Somali and English.
By conducting these public forums, NCF seeks to not only gather public opinion on issues that matter to the people, but also to educate them on these issues. In this light, the NCF aims to involve as many people as possible to get involved in the consultation process of this constitution, and will continue the dialogue as long as it is open for discussions.
Conclusion
Since the consultation draft constitution was published last July, the discussions surrounding this development have shifted from its validity from an Islamic point of view to its timing. Religious scholars have debated the permission of a manmade law or constitution and proved through the two main sources of the Shari’ah and Islamic history that it is acceptable to have a manmade constitution that does not contradict with the principles of the Shari’ah.
Those interested in this consultation draft and have read it thoroughly, however, come to the shocking conclusion that a large part of the constitution is nothing more than a translation. It is thought that the constitution was initially drafted in English and later translated to Somalia. This has serious implications on the meaning of some of the articles which seemed out of place or irrelevant under the Somali culture. Examples of these articles are those concerning citizenship, where certain clauses discussing the citizenship of a child found in Somalia whose parents are not known. Such an issues does not represent and are mostly not applicable to the Somali culture and norms, especially considering the blood ties and tribal connections that eliminates the possibility of these and other similar issues.
In general, the consultation draft constitution was found to contain contradictory statements and ambiguous clauses. The mainly held opinion about the technical side of the consultation draft constitution is that there were too many linguistic issues, especially in the Somali version – a result of the direct translation approach adopted by the drafters. This brought about questions on who wrote this consultation draft and how their selection criteria.
The other issue is the constitution making process, lack of transparency in selecting the right people for the project. Many believe that since it is another UNDP project, those with ties to the organization and others who needed the job were selected following a similar approach to the employment generation projects of the organization.
Although there is no question about the need for a constitution as many see it as a solution to the continuous conflicts of interest between the presidents, vice presidents, the premiers and their cabinets as the short history of post-1990 revolution witnesses, it is perfectly reasonable to ask the challenging question of whether the time is right for doing this right thing. While the major part of even the capital is not in the control of the government, the implementation of this constitution is going to be a tricky, a matter that everybody is trying to ignore. However, writing the constitution with an eye on how it will be implemented could have resulted in a more context-sensitive, more realistic draft constitution.
This report presents an eagle’s view of the issues concerning the consultation draft constitution, and will be followed by more discussions.
Recommendations
The participants of the public forum made the following recommendations:
1. That the consultation draft constitution warrants more scrutiny to ensure its relevancy and accuracy, and that, since it concerns the fate of every Somali, it should the goal of everybody who can read to give their views and related suggestions
2. That the language of the consultation draft constitution be the Somali language, and any other versions to be translations of the original Somali draft
3. That the independent constitution committee give a priority to transparency and involve the people in the constitution development process
4. That the issues of contention such as the federalism be delicately handled and bring together experts and leaders that are more concerned about the constitution writing process as a civic duty and not as an employment opportunity
5. That the consultation and correction process of the draft constitution consider the future of this ultimate law and how it will be implemented
6. That it will be necessary to consider the political and social forces at play all over Somalia to come up with a more realistic constitution draft
Rapporteur Services Provided by the Center for Research & Consultancy Services