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February 2010, Nairobi Kenya
Since the break out of the Somali civil war in early 1991, various peace agreements that served as ‘Charters’ or ‘Constitutions’ have been drafted outside Somalia. The northern regions, ‘Somaliland’ and ‘Puntland,’ have also drafted and passed their own constitutions - drafted inside the country.
Out of these, the current constitution-making process has been the most recent; drawing its mandate from the Transitional Federal Charter (TFC) agreed upon by the Somali participants at Mbagathi in September 2003.
From 2004, the constitution making process impeded by a political crisis stalled any progress; however, since the formation of a new government, taking over from the same Transitional Federal Government (TFG), in 2009 its progress has quickened.
Undeniably, the process has faced challenges that make it complicated. One of these is the fact that the process has turned into a debate whose argument is that the constitution-making process is the real peace process. The current process also faces the dilemma of the preferred form of government in particular the concept of federalism and its application in the country.
Other issues that pose a challenge include: the role of Sharia law; participation within the drafting process – the actors and their different roles; and the place of ‘Somaliland’ and ‘Puntland’ among others.
With this background, the participants deliberated on the constitutional-making process in Somalia and this report aims at provides their deliberations on the ongoing constitutional-making process in Somalia and their recommendations too.
An overview of the process
The history:
The concept of constitution-making in the country’s history is not new and it began with the liberation struggle-oriented constitution of the Somali Youth League (SYL) followed by the Italian-drafted 1960 Somali constitution. This was replaced by the military regime of 1969 – 1990 which drafted two constitutions: the 1979 and the 1990.
The current process is led by the TFG’s Ministry of Constitutional and Federal Affairs with support from the UN Development Programme (UNDP) Somalia’s constitution-making support project which, in line with the stipulations of the TFC, aims to promote reconciliation, peace and stability through a constitution-making process at the federal level.
While UNDP closely works with a group of international NGOs called the Consortium and which is charged to provide technical assistance at the various stages of the process, the Independent Federal Constitution Commission (IFCC) and the Parliamentary Constitutional Committee (PCC) closely work with the Ministry with the IFCC taking the lead in terms of drafting the new constitution.
In addition to the Consortium, UNDP has an international consultant charged to advise the Ministry and the process and who is himself of ethnic Somali. The tentative deadline to produce a Sharia-compliant federal draft constitution is before the end of the year.
Achievements to-date
The participants noted that so far the constitution team drafted a roadmap on how to achieve this and it is about to be approved by the cabinet and the parliament. The IFCC is also expected to meet in Djibouti on the 27th of February 2010 in order to start working on the drafting process.
During the past two and a half years, one key workshop was held on federalism and its applicability in the current constitutional-making process (Nairobi, November 2008). The workshop that brought together field experts on the subject matter provided the opportunity to deliberate on the issue and make recommendations. The recommendations were presented to the constitution team and they will form part of the process.
The mission of this large inter-agency group (both Somali and non-Somali actors) is to facilitate the steps necessary for producing a legitimate Sharia-compliant constitution with broad popular Somali support, which articulates a common vision of the future state of Somalia.
However they noted while the international community has had concerns regarding the incorporation of human rights norms and standards; the concerns of -- for example the protection of -- women and marginalized clans, sub-clans and sub sub-clans; likewise, Somali actors beyond the process also have their concerns. These they said include: the form of governance for Somalia and in which way; the role of Sharia; constitution-making without external assistance; the provision of a forum for negotiation on divisive and/or contested issues, and lastly, the application and the need to uphold the new constitution once agreed on.
Issues, challenges and recommendations
As was earlier mentioned, since the process of constitution-making began in Somalia, a number of issues and challenges emerged from the process.
For example, what the preferred form of governance in a lawless Somalia context is; the applicability of federalism in Somalia; the role and compliance of Sharia law; the issue of participation within the process; and the role(s) of ‘Somaliland’ and ‘Puntland’ in a Sharia-compliant Somali constitution in the near future among others.
Federalism and its applicability:
Participants pointed Federalism, and its applicability to Somalia, to be the most contentious issue in the debate. This is a more decentralised form of governance which is preferred in inter-riverine regions and in ‘Puntland.’ For the people of Bay and Bakol regions of southern Somalia, federalism has been the preferred mode of governance from the late 1930s while the ‘Puntland’ regions embraced the concept only from the late 1990s.
This is, however, opposed by the clans residing in much of South-central Somalia including Mogadishu, the capital. Participants said while the historical enmity against a more centralized system plays its role in this federalist-based thinking, the term ‘federalism’ is itself not clearly understood in Somalia. Many including some of its proponents also question its applicability.
They acknowledged the different initiatives to study it further though none of them strongly recommended it as the best way for the country. Instead, various scholars and analysts opted to compare and contrast the advantages and disadvantages.
In a nutshell, there is a general agreement that many Somalis would prefer federalism not that they see it as applicable to the lawless country but basically because they are fed up with a strong centralised system of governance.
The role and compliance of Sharia law:
Participants highlighted the role and compliance of Sharia law as also debated among Somalis and non-Somali actors alike.
For example, groups like Alshabab and Hisbul Islam believe there is no need for a constitution as the holy Koran offers direction, while the TFG and other Somali actors (including members of the Somali civil society and the Diaspora, Jaaliyadda) argue that there is a need for one that comply with Sharia so that it does not contradict Islam since Somalia is an Islamic state.
Members of the international community including regional actors are also concerned that Sharia compliance may deny the space needed for the inclusion of human rights issues into the new Constitution. There is, however, a general agreement that the Sharia-compliance language has to do with the inclusion of the five (5) universal Islamic principles into the main Constitution document while its application is the duty of the courts that will detail its meaning and interpretation. NB the five (5) universal Islamic principles are the preservation and promotion of life, religion, family, wealth, and human dignity.
The issue of participation:
The issue of participation within the process raises one important question: whose mandate is it to draft a constitution?
The participants felt mandate aside, the TFG was wrong to let the relevant ministry and other actors to draft a federal constitution. Instead, the government could have asked the Ministry and other actors involved in the process to draft a Sharia-compliant Somali constitution and provide the required space for citizens to decide what kind of a constitution they need.
The process of consultation, especially among the Somali public, was said to be very minimal. As of now, very few Somalis are involved in the process. For example, members of the civil society and the Jaaliyadda are not fully engaged and the drafting process is about to begin in Djibouti anytime and a draft constitution expected by the end of June this year.
Recommendations
The British Broadcasting Corporation (BBC) Somali service was marked as one great channel of communication that is available to create awareness and it can offer a platform for debate on the challenges and opportunities that exist for the process.
The Ministry and other stakeholders can also visit various foreign capitals and engage the Jaaliyadda by explaining the process and asking for their inputs.
Other avenues to take the draft constitution back to the people and revise any contentious issues include the possibility of setting up a panel of Somali experts to look at it; deliberate the contentious issues and recommend possible revisions by the parliament before it is put for validation if not through a 'national' referendum. How 'national' is yet to be deliberated.
The role(s) of 'Somaliland' and 'Puntland:'
It was noted that the role(s) of ‘Somaliland’ and ‘Puntland’ in a Sharia-compliant constitution were unclear. The two regional administrations have their own constitutions.
Despite the fact that ‘Somaliland’ claims to have seceded from the rest of Somalia and ‘Puntland’ prefers regional autonomy until there is a federal system government in place, the TFG-led constitution-making process can learn from their constitution-making processes.
This process is not only a learning opportunity but it also provides a more conducive environment for the two northern entities to embrace if and when they decide to join the new Somalia in the future.
While it is going to be difficult to engage them, particularly ‘Somaliland,’ there is a need to consult as much as possible even if it is off the fence and informal. Participants noted so far, the relevant ministries of the ‘Puntland’ administration and the TFG have agreed, differed and are talking again and this needs to be encouraged.
Validation of the constitution:
Participants felt that an inclusive validation process is needed for the new Constitution. In this context, it is very clear that the possibility for a ‘national’ referendum is not possible. There is insecurity in much of South-central Somalia; ‘Somaliland’ and ‘Puntland’ are not fully onboard in the process; the TFG controls less than a third of Mogadishu, the capital; and there is little political support coming from and/or can be offered by the UN Political Office for Somalia (UNPOS).
Therefore, one way of endorsing it is passing it by a majority of 'an elders’ council', drawn from the legitimate 'traditional leaders' of Somalia. Despite the difficulties of who will vet such 'traditional leaders' and where will they meet, once such a forum endorses it, the current expanded parliament can also pass it before the end of the term of the Transitional Federal Institutions (TFIs).
This will also reduce the risk that, without a constitution, the current Charter will remain to serve as the basis for elections after the end of the TFIs’ term (six (6) months before August 2011).
Conclusions
The constitution-making process in Somalia provides a number of opportunities.
It will be the first time (even before the war) that the citizenry participate in the Constitution-making debate.
The TFG should lead the process but make every effort to remain non-partisan and give room for dialogue and debate.
Emphasis should be placed on the process rather than the final outcome so that there can be a widely consulted product, which can serve the basis of the future government to take over from the current transitional one.
It is only with hope that there shall be wide consultations with various Somali actors including the northern entities; an engagement of the Somali public in civic education on the process and through the media, preferably the BBC; wide consultations with all the past Somali constitutions and transitional Charters so that lessons can be drawn from other constitution-making processes, mainly the northern regions and that a Sharia-compliant constitution which addresses the concerns of a majority of the Somali public will be finally drafted and endorsed by the Somali people.
List of participants
Name(s) Tel contacts Email(s)
1. Ibrahim Farah 0721-675-957 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
2. Abdikadir Awis Mohamud 0721-999971 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
3. Abdi A. Mohamed (Baffo) NCF 0722-607-803
4. Mohamed Ibrahim Mohamed (Fanah) SNUT 0711-675-761
5. Mukhtar Diriye (Postgraduate Student/Somali academic)
6. Hassan Sheikh Mohamoud 0728-842-118
7. Abdulkadir Mohamed Osman 0716-792-027 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
8. Farah Sheikh NCF This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
9. Marian Mohamud Haji This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
10. Ahmed Ali Ugas 0724-777-899 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
11. Qoran Noor 0724-513-949 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
12. Fatima Abdirizak Sheikh Issa 0721-811-289 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
13. Madina Amir Mohamed 0720-995-599 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
14. Mohamed Barre 0724-411-173 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
15. Noor Hussein 0722-813-843 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
16. Shirwac M. Jaamac This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
17. Zahra Mohamed Alieol 0721-550-707 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
18. Asli Ismail Duale 0718-000-867 This e-mail address is being protected from spambots. You need JavaScript enabled to view it.