Effect of Draft Constitution: End of Somalia, Not End of Transition
By Mr. Mohamud M Uluso
August 1, 2012
_____
Mareeg.com-The International Community (IC) has delivered a pre-approved
mandatory "Draft Provisional Constitution (DPC)" to 135
http://www.mareeg.com/uploads/21072012070144.jpg
"Traditional Leaders (TLs)" and 825-member "National Constituent Assembly
(NCA) with the official message that both groups are not allowed to make
amendments to the draft document or to reject it. 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).
From the beginning, the Constitutional process has been funded, managed and
controlled by the IC through United Nations bodies and the International
Development Law Organization (IDLO) which implements the Italian funded
project for "Supporting the Constitutional Review Process (CRP) in Somalia."
On July 23, UNPOS released a revised version of DPC previously signed by the
six (6) signatories of the Roadmaps process in Nairobi, Kenya on June 23,
2012. It issued a new Guide Book explaining the contents of the DPC.
Additionally, for surprise reversal of position, the SRSG announced the
increase of the number of Members of People's House of Federal Parliament
(FP) from 225 to 275 members.
Two mysterious committees- a Technical Review Committee and a Transitional
Federal Government (TFG) Joint Implementation Unit
<
http://www.mareeg.com/admin--/mods/news/index.php#_ftn1> [1]- have the
discretionary power to amend continually the DPC while UNPOS has brazenly
overruled the proposals for amendments or postponement of DPC debate from
the majority of the Somali leaders. The Minister for Constitution,
Federalism and Reconciliation, Hon Abdurahman Hosh told the NCA members in
clear terms that they should not waste their time studying the already
pre-approved mandatory Draft Constitution and they should applaud for the
work done as a sign of appreciation. Otherwise NCA members could be labeled
as "spoilers." UNPOS has predetermined that just one-fourth of 825
NCA-member is needed to vote on a loaded question
<
http://www.mareeg.com/admin--/mods/news/index.php#_ftn2> [2]. Even if NCA
rejects it, DPC remains the law of the land. Somalia has been subjected to a
transitional system of governance and to a Constitution-Making process never
experienced in recent history.
The latest version of DPC contains 143 articles and its predictable effect
is the "End of Somalia as a country and people" and "not the End of
Transition period for permanent system of governance." The provisions of DPC
promote all sorts of problems and political dynamics 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)
and protracted stalemate over the formation of Federal Member States (FMSs).
Salient provisions of the DPC
The Guide Book which explains main salient provisions of the DPC outlines
the followings:
1. Federalism: DPC prescribes a Federal system of government (Federalism)
for Somalia for three reasons:
a. To accommodate the existing regional governments, specifically
Puntland or GalMudug; No mention of Somaliland.
b. To accommodate the distinct regional needs of the Somali people. This
Somali distinction echoes Ethiopia's strategic perspective towards
Somalia[3] <
http://www.mareeg.com/admin--/mods/news/index.php#_ftn3> .
c. To implement shared rule (in central government) and self-rule (in
regional government).
2. Noted Problems of Federalism in the Guide Book:
a. The creation of FMSs proved to be very controversial issue during the
constitutional conferences. The responsibility for establishing FMSs has
been invested in the the House of the People of FP subject to the
recommendations from an Independent Commission on Boundaries and Federation.
b. The allocation and regulations of natural resources, public finance and
tax raising powers are still subject to negotiations between FG and
non-existing FMSs. In accordance with article 50 (b), DPC requires in
anticipation that governmental functions are exercised and taxes are being
collected at the level of government where they are most effectively being
exercised or raised. The interpretation of this requirement is open for
dispute. Also, each FMS has the freedom to formulate its own land policy
c. Although foreign affairs, national defense, citizenship and
immigration, and monetary policy shall be part of the remit of the FG,
existing FMSs (Puntland) retain and exercise their powers on the basis of
their State Constitutions independently from the FG. Yet, FG must consult at
all-time with FMSs on matters related to federalism, security and foreign
affairs.
d. FMSs are exclusively empowered to develop the status, structure and
competences of local governments, and any further political and
administrative decentralization deemed necessary through their own State
Constitutions without reference to FG or DPC.
3. Independent Commissions: DPC creates Independent Commissions, which
shall be bodies operating separately from government or political control to
handle specific governmental functions.
4. Civil Servants: DPC regulates only FG civil servants.
5. Judicial System: DPC provides three different levels of courts: (1)
Constitutional Court, (2) FG Courts, and (3) FMSs Courts. The
Constitutional Court and the FG level Courts will be administered by the
Judicial Services Commission (JSC). FMSs Courts will be administered by
Institutions created by FMSs Constitutions.
6. Peace, Security and Defense: FG is responsible for the guarantee of the
peace, security and national sovereignty of the FG. However, each FMS is
entitled to establish its own FMS's police to protect the lives and property
of its people alone or in cooperation with the federal police force.
7. Representation: The parliament of each FMS represents its population.
Members of the People's House of FP represent the entire population of the
Federated FMSs. Then, the Upper House of FP represents FMSs. These
complicated representations for Somalia need separate discussions.
8. Amendments: There are two processes for constitutional amendments. One
process is to be followed in the period before the popular referendum on DPC
and the other one is to be practiced after popular referendum. In any case,
Amendments to the Constitutions will require 2/3 of Upper House of FP which
does not exist. This situation prohibits amendments of any type to DPC.
9. Effect of DPC. DPC comes into effect at the conclusion of the NCA
9-days conference in Mogadishu, Somalia.
Implications of the salient provisions of the DPC
I. The Guide Book omitted the discussion of certain
controversial provisions of the DPC. Some of those omissions are:
1. The philosophical interpretation of the articles 2, 11, 17, and 18 all
related to religion, equality and personal freedom. Similarly the Guide Book
did not clarify the contradictions between articles 53 on International
negotiation and 54 on allocation of powers.
2. The reasons for eliminating functional relationship between the
President and the Upper House of FP.
3. The reasons for the subjection of the Somali territory to international
dispute as per article 7 (3).
4. The rationale behind the supremacy of the international laws and the
laws of other countries over the Somali Law in all matters as per article 40
(2) on the interpretation of the fundamental rights.
II. Problems and dynamics causing the End of Somalia
a. Federalism for Somalia has never been thoroughly debated among Somalis
for their long term unity, stability and prosperity. That is why there is no
legitimate consensus on the issue since 2002. Alternatively, there is quasi
unanimous consensus on democratic system of governance with effective
decentralization based on the distribution of finance, services, development
and political power. Forced Federalism is unworkable and counterproductive.
b. DPC creates bogus FG without stakeholders, financial resources and
ability to exercise practically any national political power. It also
creates parallel federal, state and local systems of governance without
national hierarchies and accountability. To the detriment of national unity,
infinite FMS(s) Presidents, Council of Ministers, Parliaments, security
forces, civil services and independent judiciary structures will sprawl all
over. In a historical time when the international assistance has dwindled
and the motto is for small Government at all levels, DPC forces the
worn-torn Somalia to establish unsustainable structures of system of
governance without allocation of power, financial resources and massive
external support.
c. DPC grants five special privileges to FMSs. First, each FMS is
independent from the FG. Second, FG must consult with each FMS in its
decision making process regarding federal system and security arrangement.
Third, each FMS's citizenship is recognized despite DPC says National
Citizenship is indivisible. Fourth, existing FMSs are exempt from the
contribution to the costs of FG's nominal representation of all Somalis.
Residents of non- existing FMSs bear FG's financial burden. Fifth, each FMS
independently pursues its foreign interests. There are no reciprocal
privileges from FMSs towards FG. FMSs dominate FG. This mirrors the ideas
behind the failed US articles of confederation of 1781.
d. Territories and people under FG rule will more likely suffer
exploitation, political and economic mismanagement, violence and foreign
military occupation.
e. Recognition of Puntland as FMS could intensify conflict between
Somaliland and Puntland. At the same time, the exclusion/exemption of
Somaliland from the coverage of DPC will legalize its secession from
Somalia. In addition, the acceptance of Federalism based on 18 regions
de-legitimizes the existence of Puntland and Somaliland as FMSs. These
contradictions undermine national dialogue for genuine national accord and
reinforce national fragmentation.
f. Given Puntland as a model for FMS, DPC encourages the daily emergence
of mini-States throughout Somalia which could lead to social tension and
long term instability.
g. DPC deprives FG of the constitutional legitimacy of representing
Somaliland and Puntland in the international arena.
h. FP has no power in exercising constitutional amendments, given the
inexistence of the Upper House of FP, and other restrictions built in the
DPC for proposing, drafting and approving amendments before and after
popular referendum.
The Somali people have been denied the right and opportunity to participate
the UN-led constitutional making process and their demand for ownership has
been treated with contempt. The DPC is imposed on Somalia with intimidation
and corruption. To some extent, the negative attitude of the Somali
intellectuals has encouraged the IC to invest the national political power
in six (6) individuals without legitimate representation and to organize
show conferences of TLs and NCA without legitimate purpose. Nevertheless,
PDC instigates challenges that could halt or delay the march towards peace,
stability and progress in Somalia.
Mr. Mohamud M Uluso
mohamuduluso_at_gmail.com
_____
<
http://www.mareeg.com/admin--/mods/news/index.php#_ftnref1> [1] It is hard
to keep up with the changing terminology and names invented by IC for media
attention.
<
http://www.mareeg.com/admin--/mods/news/index.php#_ftnref2> [2]
<
http://unpos.unmissions.org/LinkClick.aspx?fileticket=Crs_XvJpAd4%3d&tabid=
9705&language=en-US>
http://unpos.unmissions.org/LinkClick.aspx?fileticket=Crs_XvJpAd4%3d&tabid=9
705&language=en-US " 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? "
<
http://www.mareeg.com/admin--/mods/news/index.php#_ftnref3> [3]
http://www.mfa.gov.et/docs/Foreign%20Policy%20English.pdf
*********************************************
Somali leaders pass constitution
2012-08-01 16:25
http://www.news24.com/Africa/News/Somali-leaders-pass-constitution-20120801
Mogadishu - A gathering of leaders in Somalia has approved a new
constitution for the struggling country.
The Wednesday vote - 621 for, 13 against with 11 abstentions - came shortly
after two suicide bombers tried to attack the Mogadishu meeting.
A police officer said security forces shot the two bombers at the gate to
the meeting area. The two bombers were killed and one Somali soldier was
wounded, said Abdi Yassin, a police officer.
The constitution affords more individual rights to Somalis.
The UN mandate for Somalia's current government expires on 20 August, and
Somali leaders have been tasked with voting on the constitution, voting in a
new 275-member parliament, and electing a president before then.
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Received on Wed Aug 01 2012 - 15:34:28 EDT
