Somalia Constitutional Review Process: Puntland's View
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10 January 2020 12:41
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GAROWE, Somalia (HORN OBSERVER) - Around the world, there is not a perfect "single model" to implement a Constitutional Review Process, nor is there a definitive data supporting a single model for a post-conflict fragile setting, such as Somalia. However, constitutional experts are in general agreement that there must be a determined commitment to
put aside short-term personal or partisan advantages and to consider the long-term welfare of the broader
political community.
A constitution is defined primarily as a "social contract” that governs life, rights
and freedoms, and citizen responsibilities. In addition, a constitution defines the laws and principles that
guide a Government’s work. Since attaining independence in 1960, three Constitutions were implemented
in Somalia: two National Charters, and the current Provisional Federal Constitution (PFC) of Somalia
(2012). Generally, constitution-making processes undergo four distinct phases.
1. Somali Ownership
a. The preparatory phase, consists of the consultative process, agreeing on modalities for
constitution-drafting process, and agreement on constitutional principles.
b. Constitution-drafting phase consists of the nomination of Constitutional Committee, consultations
with constitutional experts, and to commence constitution-drafting.
c. Public consultations phase is the period of time underpinned by vitally important public
consultations and awareness campaigns.
d. Constitutional review and adoption phase is defined by constitutional review and referendum
process.
Positive outcomes of a successful process are transformative and the process taken "can assist to build
and maintain trust, engendering a sense of commitment to a shared state.” Jennifer Widner, who has
written on constitution-building in post-conflict settings, states: "Constitution-building programs that
exclude key players or social segments generally result in short-lived documents." The legal bodies
tasked with implementing the process remain extremely vital to the inclusivity and legitimacy of the said
process, especially from the viewpoint of legitimate political stakeholders and the wider public.
Widner
asserts that, "the character of the main deliberative body is often the primary focus of interest, possibly on the grounds that its character and composition send strong signals about representatives to the
public-at-large.
MOU on the Constitutional Review Process
According to the Memorandum of Understanding (MOU), signed on March 8, 2015, in Mogadishu,
Somalia, the Constitutional Review Process in Somalia is underpinned by seven specific principles in
order to produce an agreed-upon and finalised Federal Constitution that is legitimate and secures the
national interest of the Somali people. The MOU identified the seven principles as follows:
1. Somali Ownership
2. Inclusion
3. Transparency;
4. Participation;
5. Accountability;
6. Collaboration and Coordination; and
7. Integrity.
This Puntland Government Policy Paper aims to examine the overall conduct and performance of the
Somali constitutional review process, the application of the seven principles and subsequent flawed
process, and proposals for reforming the process and fostering an inclusive way forward. Since 2007, a
number of constitutional committees have been busy in drafting a negotiated and agreed-upon Federal
Constitution. This was finally achieved, in August 2012, when the 835-member National Constituent
Assembly (NCA) ratified the Provisional Federal Constitution (PFC) of Somalia. Chapter 15 of the PFC
clarifies the procedures, responsibilities, obligations and mandates of the constitutional review process.
Other constitutional provisions require that Federal Government of Somalia (FGS) and Federal Member
States (FMS) to engage in direct political negotiations and agree on outstanding national issues. After a
negotiated agreement is finalized, the constitutional review bodies – the Independent Constitution Review
and Implementation Committee (ICRIC) and the Parliamentary Oversight Committee (OC) – may play
their legitimate role, guided by negotiated agreement between FGS and FMS.
Somalia’s Constitutional Review Process
In August 2019, Special Representative to the U.N. Secretary-General (SRSG) to Somalia, Ambassador
James Swan, said at a U.N. Security Council Briefing: "The Federal Constitution, once adopted, will
provide a common vision for all Somalis, while defining clearly the respective roles of the organs of the
federal state, and relations with and between federal member states. Progress has been made in the
technical review process but Somalis now need to pursue an inclusive dialogue to reach an agreement on
outstanding critical issues, including the allocation of powers, intergovernmental relations, system of
governance, resource sharing, and the status of Mogadishu.”
Unrealistic Deadline
The FGS has recently put a June 2020 date on finalization of the constitutional process.8 However, this
date is highly improbable due to a number of significant factors that precede completion of the said
process, including:
1. The process has violated constitutional requirements for FGS-FMS political negotiations on the major
outstanding issues;
2. the process has been fraught with significant flaws and internal failures that compromise the outcome of
a legitimate constitutional review supported by FMS and other political stakeholders;
3. the process lacks sustained consultations over constitutional provisions concerning the two levels of
government in the Federal Republic;
4. the constitutional review bodies exclude state delegates, as required;
5. limited public consultations to increase citizen participation in the process and therefore further strengthen
its legitimacy;
6. Some international partners or organisations have correctly identified key challenges and unique
circumstances that prevent the finalisation of the Federal Constitution in a collective and timely manner.
For example, in its annual report, the MPTF states that the challenges to the constitutional review
programme for 2018 included, "…a dissonance between political realities and the constitutional text;
harmonizing of the Federal Constitution with the draft state constitutions, competing political
ideologies.”
Ownership
1. The aspirations of process were Somali Ownership, which was defined in the Memorandum of
Understanding as: "The parties to this agreement share the deep conviction that the Constitution must be
an expression of the aspiration of the people of Somalia. All parties commit to ensure that the ownership
of the Constitution lies with the people of Federal Republic of Somalia and that the process is conducted
in the Somali language.”
2. The key ingredient to any process is the ownership of that process. However, the word ownership is easier
toted than implemented. The International Community has been heavily invested in the Somali
constitutional process since its inception (The UN Envoy signed as witness to the 2012 Provisional
Federal Constitution). Since then, the IC has supported two phases of Constitutional Review Programmes
aimed at building capacity and creating an enabling environment for the process to thrive. With that level
of involvement, there is a trade-off associated with that kind of international support. Dr. Kristi Samuels
argues that, in similar circumstances, there is a trade-off to international support, which is local ownership,
making it hard to assess if demand for the process is externally or internally driven.
3. The Institute for Democracy and Electoral Assistance (IDEA) highlights the risks of capacity building
centric programs initiated by international stakeholders to constitutional processes. According to one
observer: "Donors tend to assume the role of teaching ‘them’ (politicians and people of so-called fragile
states) how to do ‘our’ (the western developed donor states’) institutions better.”11 He further warns that
approaches like these run the risk of making state-building merely a technical exercise, "limited to
enhancing the capacities and effectiveness of state institutions.” IDEA believes that the constitutional
process should be locally driven, and it can be "counterproductive if external stakeholders have too
prominent a role.”
4. UNDP Constitutional Review Support Project aims to "strengthen the capacities of and facilitate
coordination and consensus-building between the different state and non-state actors involved in the
constitutional review process.”
5. A Somali public policy institute, Somali Public Agenda, in a 2018 piece on the constitutional review
process, writes: "The lack of Somali policymakers’ interest in investing in the federal constitution
combined with the international community’s determination to contribute to the design of it has ensured
that the review process remains an endless mission. Indeed, the creation of many constitution institutions
and the conflict among them can be partly explained by the continuing availability of donor funds for the
process.”
6. In a 2018 annual report on the Constitutional Review Programme, the Multi Partner Trust Fund states that
"a realistic plan is critical to address these matters during the 11th Parliament.” Yet, in 2017, the MPTF
cited support to a master plan that was later rejected by ICRIC accusing MoCA of infringing on its
mandate.
Inclusion, Collaboration and Coordination:
1. The MOU defines "Inclusion” as: "The Somali people shall be consulted and given an opportunity to
express their opinions directly and through their political representatives in the Federal Parliament, at the
level of Federal Member States and Interim Regional Authorities, and civil society structures.”
2. The third principle of the MoU was "Collaboration and Coordination”: "The parties agree that both the
effectiveness and the efficiency of the process and its outcomes depend on the level of collaboration and
coordination achieved. The parties commit to working collaboratively and to implement this process in
a coordinated way.”
3. Puntland State has reiterated the need for a process that is inclusive, however, this has been ignored. Jan
Amilcar Schmidt, a Research Fellow and Country Manager at Max Planck Foundation, wrote a piece
called Taking Stock on the Somali Constitutional Review Process, noting that the government of Puntland
"was not formally consulted and their representatives included when the Somali Federal Government and
Parliament set up the constitutionally mandated review institutions of OC and ICRIC.”
Below is a collection of independent sources reporting on internal disputes within the constitutional
review bodies:
- Somali Public Agenda writes: "There have been numerous clashes and deadlocks between the Ministry
of Constitutional Affairs and the constitution review commissions over their respective mandates and
roles in the review process, which has resulted in delays.
- In 2017, Heritage Institute for Policy Studies (HIPS) wrote: "The process was contentious as ICRIC and
OC worked separately and have different views. An MP who represented Puntland in the OC once walked
out of the discussions and took to the airwaves criticizing the process.”
- HIPS, in a separate report, writes: "Each of the three state organs (MoCA, ICRIC and OC) views itself as
the undisputed lead actor, and the competition over resources is stiff. Previously, the three entities had worked in parallel and in a duplicitous fashion and had publicly squabbled. They produced competing
drafts and recently begun pushing various agendas into the public domain and, crucially, among the
international community.”19 The report continues to identify rifts among the responsible bodies: "MoCA
circulated a draft master plan on the review process, which ICRIC branded as unconstitutional and a clear
usurpation of its power. Puntland also rejected the ministry’s master plan.”
Government Policy Position:
1. Article 134, Clause 2 of PFC, stipulates: "At the beginning of the first term of the Federal Parliament of
the Federal Republic of Somalia, the relevant Minister shall nominate to the Prime Minister five members
of the Review and Implementation Commission whom the relevant Minister selects from short lists
prepared by the Council of Ministers. In addition, existing Federal Member States shall nominate one
additional delegate to the Review and Implementation Commission, based on the same selection criteria.”
2. Puntland Government declares that, up to now, State Delegates who are supposed to be members of ICRIC
have not been allowed to join the Committee, which is a violation of a constitutional article, and renders
invalid the constitutional review process submitted to Federal Parliament.
Transparency and Participation
1. The MOU defines "Transparency” as: "The parties shall conduct all proceedings and decision making
in a transparent manner and ensure that proceedings and hearings are made accessible to all. All
consultations shall be conducted in a way that is open to the input from all segments of society.”
2. "Participation”: "The parties commit themselves to a broad public participation process in which the
Somali people are consulted.”
3. Participation and transparency are key to constitutional processes. A key indicator of this is public
knowledge and awareness. Experts agree that "people who are better armed with information about
principles and institutions are more likely to police their governors than those who know little.”
4. The UN experience in constitution making in post-conflict countries has a set of best practices for
garnering participation, which focus on, public dissemination of constitutional review results, how
differing views were considered and accommodated, and how key decisions were made to be harmonised
into the constitution. It also calls for "a legal mandate and clear roadmap for the process which clearly
indicates to the public at what stages they can participate and how.” Another key aspect it calls for is,
"transparent mechanisms for sharing drafts of the constitution and following deliberations on the draft by
the constitutional organ adopting the constitution.”
Government Policy Position:
- Somalia has suffered from a process of unrealistic timelines and lack of political will, which has ensured
the process lags and is characterised by limited participation. In 2017, HIPS reported that, "harnessing
and incorporating the views, values, and aspirations of the Somali citizens has been wholly inadequate.”25
Since then, little has changed and the same trajectory has been followed with a heightened zeal for social
media presence by MoCA, likely a result of the UNDP project for the Constitutional Review Process.
A 2018 study entitled "Citizens’ Understanding of the Constitutional Process”, conducted by New Access
International (NAI) a Somalia-based civil society organisation and development agency, a dismal 19
percent of respondents interviewed about the constitutional process knew about the meeting outcomes,
the meeting purposes or the locations of the meetings.27 But more than half remembered viewing social
media posts of the Constitutional Review Process meetings. An overwhelming 97 percent of respondents
did not attend any constitutional review meeting/s.
State delegates were excluded from ICRIC body and therefore the participation of FMS officials was used
merely as "Photo-Op Opportunities” by MoCA and other bodies. The first interregional conference
between the FGS and FMS on the constitutional process occurred in April 2019. As the press release
indicates, the forum that occurred in Kismayo was "…the first time these stakeholders had the chance to
exchange their views on substantial constitutional review issues as well as on a joint strategy and
workplan for finalising the federal constitution.”
ICRIC’s mandate is to draft amendments to the Provisional Constitution, based on political negotiation
outcome and public consultations. Then, the Joint Parliamentary Oversight Committee reviews the draft
amendments, and presents them to the Federal Parliament.29 But there is a dissonance among key
stakeholders as to the primary functions of these bodies. Max Planck Foundation, an agency mandated to
provide technical assistance to the CR process, believes that the "The Oversight Committee is mandated
with preparing and leading the constitutional review and implementation process as provided for in the
Provisional Constitution of Somalia.”30 But Article 133 of the PFC clearly stipulates that the OC "shall
oversee, direct and approve the work of the Review and Implementation Commission, and, generally, the
implementation of the Constitution.”
Puntland State’s Legitimate Concerns
State Government institutions excluded from constitutional review:
- Article 133, Clause 8, Sub-clause E of PFC stipulates: "Engage Federal Member State legislatures and
incorporate harmonized submissions into the proposed amendment, where the matter concerns Federal
Member State interests.”
- Puntland Government declares that Federal Parliament passes laws, without adequate consultations and
review by Puntland Council of Ministers and House of Representatives (state parliament), a direct
violation of constitutional principles of federalism founded on consultations and consensus-building
FGS lack of consultation with FMS in decision-making processes:
- Article 54 of PFC, "Allocation of Powers”: "The allocation of powers and resources shall be negotiated
and agreed upon by the Federal Government and the Federal Member States (pending the formation of
Federal Member States), except in matters concerning:
(A) Foreign Affairs;
(B) National Defence;;
(C)
Citizenship and Immigration;
(D) Monetary Policy, which shall be within the powers and responsibilities
of the federal government.”
- The PFC has given way to a period that is in essence transitional, as the main contentious issues within
the PFC can be summed up as the nature of federation and subsidiary. While this political climate continues to be the norm, the FGS has not made sincere efforts to engage in genuine political bargaining
because political agreement will require concessions from both the centre (FGS) and periphery (FMS).
- The Federal Model of Somalia is based on Cooperative Federalism, in line with the spirit of PFC, rooted
in broad-based consultations, cooperation and inclusive politics to solve common problems. The political
atmosphere in Somalia is evident that this model of federalism is not being implemented correctly.
3.3 Puntland public absent from the Constitutional Review Process.
- During a constitutional review process, it is constitutionally mandated and imperative to include FMS and
the Somali public in the revision and amendment process.
- Puntland government reaffirms that the review process lacks the inclusion of Puntland public. Studies
conducted by research organisations in Puntland have identified a general lack of understanding of the
PFC. The general population is deeply misinformed on the social contract that is supposed to govern them,
and therefore, cannot contribute effectively to its review process. Hence, the outcome of such a process
not rooted at the grassroots level will likely not be representative or inclusive.
- The Federal Parliament decided that nine articles needed political consultation and agreement
between the FGS and FMS.
-After four years of review, the nine articles continue unresolved and
contentious, including: Allocation of powers.
- Government type
3.3.3.1.3 Status of Mogadishu
3.3.3.1.4 Status of ‘Somaliland’ and FMS boundaries
- Resource sharing model
3.3.3.1.6 Fiscal federalism ;
3.3.3.1.7 Federal/state court jurisdictions (judicial model)
- Federal/state election jurisdictions (electoral model)
3.3.3.1.9 Harmonisation of Federal Constitution with FMS constitutions
Government Policy Position:
Puntland state shall continue to abide by its own State Constitution, ratified by a State Assembly in 2012,
until such time that the PFC is adequately reviewed with full participation of FMS and other stakeholders,
harmonised with FMS Constitutions, and a national referendum is carried out.
In contravention of constitutional principles, Puntland state was not consulted on regarding key federal
laws, including laws "approved” by Federal Parliament or pending, such as Electoral Law, Petroleum
Law, Taxation Law, Civil Aviation Law, Fisheries Law, and Mining Law. As such, Puntland state does
not recognize the legality of the said laws – until such time that the Constitutional Review Process is
completed in an inclusive, transparent and consultative process with the Federal Member States, and that
the FGS regular consults with FMS on pertinent federal laws.
Way Forward: Policy Proposals
Puntland government proposes broader and more inclusive consultations that include FGS, FMS, political
associations, civil society stakeholders and an accommodating political space to ensure that there is
genuine and lasting political agreement.
Puntland proposes that a political negotiation mechanism should be established immediately, such as
formation of "National Cooperation Council” (NCC) – chaired by Prime Minister and with membership
of five FMS Presidents. The NCC should be established and mandated by law ("NCC Law”) and its role
eventually harmonised into Federal Constitution. Among the NCC’s key tasks is negotiating a lasting
agreement on the nine Contentious Articles.
A final decision on the status of the self-declared "Somaliland” polity must be included in the negotiated
and finalised version of the Federal Constitution. Puntland has a long-running territorial dispute with
"Somaliland” which has led to years of armed clashes and civilian displacement; as such, Puntland as
representative polity for local communities in Sool, Sanaag and Ayn regions, must be included in any
legitimate dialogue process between FGS and "Somaliland”.
Puntland proposes a thorough review of Constitutional Review Process, from inception to
implementation, to identify procedural gaps, clarify roles and responsibilities, and ensure clear roles for
FGS, FMS, civil society and broader public participation.
Puntland cautions against a rush to accept the outputs of the constitutional review process without deeply
understanding the implementation process and its wider implications, which can likely incite an outcome
that obstructs genuine political reconciliation and potentially cause further setbacks, as Somali nationstate attempts to move beyond its violent past.
In 2016, following an impending election process, the constitutional review process was put in abeyance
as the MPTF report cited: "With the coincidence of other political processes and events, such as the
electoral process, political leaders did not give the constitution making process the support it required."
Currently, Somalia finds itself in the same political predicament, as in 2016, and the divergent views on
the preferred electoral model dominates the political landscape…and still there is no agreement. It would
be imprudent to expect that the nature of federalism and how this translates to establishing a constitution
that is representative will be decided upon in the coming five months.
To strengthen commitment to the review process, Puntland calls for a Somali National Constitutional
Conference to present the findings of the process, review findings and negotiate the way forward for an
actual and realistic completion time frame for the Federal Constitution Roadmap. This conference should
have genuine commitment to achieve goals and objectives, should be detailed and publicly transparent in
nature, and pave the way for broader and regular consultations among the Somali stakeholders.
Source: Puntland State Government
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Press Releases
Somalia Constitutional Review Process: Puntland's View
GAROWE, Somalia (HORN OBSERVER) - Around the world, there is not a perfect "single model" to implement a Constitutional Review Process, nor is there a definitive data supporting a single model for a post-conflict fragile setting, such as So