The decade-long delay in the completion of the Provisional Federal Constitution (PFC) is major threat to statebuilding in Somalia. Although one of the reasons behind the delay has been attributed to the difficult process of establishing the Federal Member States (FMS), the decade-long delay attests the unwillingness of Somalis to unite as citizens (not as clan members) of the Federal Republic of Somalia (FRS) governed by the rule of law. Any further delay in completing the constitution will lead to total failure of Somalia statebuilding efforts.
The PFC was the product of contentious constitutional process pushed forward by the international community for the establishment of a permanent federal government of Somalia (FGS), vested with national sovereignty, eligible for international engagement and assistance. The most important clauses of the PFC are the delimitations of the boundaries of the FRS, the enumeration of the inviolable human rights, and the foundational principals underlying a democratic federal system of governance enough to guide good leaders who are determined to uplifting their people out of statelessness, civil strife, and abject poverty. In parenthesis, it’s worth remembering that since 1992 Somalia remains subject to Chapter VII of the UN Charter with UN Security Council Resolution 794 (1992), continuously reaffirmed until today.
Unfortunately, some clauses of the PFC are contradictory, while others are left for negotiation. Among the latter clauses left for negotiations include the definition of the functionality and practicality of the federal system adopted to decentralize the state power for good governance.
For example, article 48 concerning the structure of the federal state establishes the two levels of federal government – FGS, FMS and Local Governments. Furthermore, article 49 concerning the number and boundaries of the FMS, divides the territorial federal state into 18 administrative regions that existed before the collapse of the Somali State in 1991. Each region consisted of number of districts. The legitimacy of all FMS has been subjected to the approval of the federal parliament. Therefore, despite the stipulations of the articles 120 (Institutions of the FMS), 121 (Principles for FMS Constitutions), and 142 (Existing FMS), all FMS including Puntland lack legal legitimacy as per articles 48 and 49.
The reliance on certain articles and disregard of other articles creates never ending contention that will force the repudiation of the federal system wrongly interpreted as “different sovereign communities owning and controlling certain areas of Somali territory,” an interpretation that rejects the principle of sovereignty of the FRS invested in all people (article 1 {2}), Somali Citizenship (article 8), and the state ownership of the Land (article 43) included in the PFC. Such interpretation of the federal system obstructs the emergence of federal state capable of advancing the security, defense, and socio-economic development of whole Somalia as inviolable and indivisible territory and people. The responsibilities of the FGS for national defense, naturalization and immigration, foreign relations, development planning, and fiscal and monetary management presume broad powers of the FGS throughout the FRS.
The autonomy of the FMS should not challenge the leadership role of the FGS and the hierarchical linkage of the political, administrative, security, judiciary, economic, and defense activities of the country within the context and limits of the federal constitution. It’s sacrosanct principle that all decisions and actions of the federal government, FMS, and local governments should not violate the letter and spirit of the federal and state constitutions and laws.
Puntland State, one of seven (7) FMS, played a leading role in the choice of the federal system to prevent concentration of power in the central government and to enhance the role and power of the regional states. However, lately Puntland state claimed separation status from the federal government.
Without prejudice to the complaints the state of Puntland may have against the FGS, the standoff between the two should not derail the completion of the federal constitution that will address the multiple issues that are obstacle to the realization of peaceful, united and democratic FRS. It’s important to underscore here that the completion process of PFC is not an exclusive responsibility and competence of the FGS and FMS. The PFC prescribes the process and the institutions responsible for its review (completion/amendment).
The constitutional process is open for effective participation of all stakeholders, interested groups and individuals, because the constitution is a social contract that binds all people living in the FRS. The FGS bears the responsibility of effectively and competently leading and managing the process with integrity and transparency.
After boycotting the participation of the National Consultative Council (NCC) meetings between the FGS and the FMS, Puntland state issued five-page statement, under the title “The Puntland Government’s Proposal on the Solutions to the Challenges Surrounding the State Building in Somalia.” It claims “remarkable investment to realize a peaceful, united and democratic FGS,” and the voicing of “numerous of serious concerns regarding the lack of political will and systematic delays in reaching negotiated political settlements that would foster the completion of the PFC.” It denounced the NCC, a forum for dialogue between FGS and FMS, for proposing unconstitutional and non-inclusive initiatives.
Therefore, Puntland government has decided to negotiate separately with the FGS on the following ten issues.
1. Th process of reviewing and finalizing the provisional constitution
2. Delineation of government powers (power sharing formula)
3. Distribution of national resources and international development aid
4. Administration of revenue and national fiscal policy
5. The issue of north west regions of Somalia (Somaliland)
6. Status of Capital City of Somalia
7. The introduction and implementation of federal government regulations
8. Implementation of democratic elections
9. Building national security forces
10. Conflict in Las Anod
Some of the issues and opinions are either settled in the PFC or fall outside the constitutional scope. The important task is to focus on the necessary amendments for the completion of the constitution which establishes the constraints/guardrails needed to prevent human rights abuses, corruption, and civil strife.
Without doubt, the daily performance of the FGS to address the multiple problems of the day without a final constitution triggers disputation and confusion. Thus, the key to address the disputation and confusion prolonging the suffering of the Somali people is to devote serious attention and efforts to the completion of the PFC which should go through a rigorous process of debate for contribution and ownership before formal approval by the federal parliament and later by a National Constituency Assembly (NCA) of 2,000 delegates for interim adoption.
All FMS constitutions will have to harmonize their state constitutions with the final version of the federal constitution. No FMS constitution should infringe the spirit and letter of the federal constitution.
In the constitutional amendment process, the role of the NCC is to provide constructive contributions for a perfect constitution. The people and institutions of the FMS should have the opportunity to debate the final draft of the completed constitution before the federal parliament and finally the NCA approve it for interim adoption.
The decision of Puntland state to negotiate separately with the federal government on constitutional issues creates problems. First, it motivates other FMS to demand the separate treatment for different reasons. Second, it undermines the collaborative working relationship between the leaders of the FGS and FMS through the NCC. Third, it forces the FGS to deviate from the right path of consensus building on the constitutional issues. A unified position of the NCC facilitates a fast-moving process of the constitutional amendment. The final draft should be published for formal public debate.
The positions of Puntland State explained in the above-mentioned statement convey sense of backpaddling because they are far from the federal system envisaged in the PFC. Both the foundations of the FRS and the need for and purpose of the FGS are questioned.
It’s hard to reconcile the Puntland’s position of separate status with the position of supporting the resolution of the concerns of the people and administration of the Northern Regions of Somalia (Somaliland) through dialogue to ensure the preservation of the territorial integrity and unity of Somalia. Puntland state do not recognize the nationwide role, responsibility, and authority of some of the federal institutions like the federal parliament, the executive branch of the FGS (article 99), the supreme and the constitutional courts, the central bank, the Somali National Army, the Intelligence service, the civil aviation, the ports and the international airports authority, the transportation and communication authority, the revenue authority, and the national independent election Commission.
There is confusion about the difference between the Capital City of the FRS – the seat of the FGS – which is Mogadishu and the Benadir Region which is one of the 18 Regions forming the FRS. The capital Mogadishu must be located in a designated area called “Mogadishu,” which will have separate administrative arrangement, where all federal government institutions and foreign diplomats will be headquartered.
In the federal system, the people of Benadir Region have the right of self-governance as other regions. Benadir Region should have new district as its “capital” and develop new plan of reconstruction to recover from the last three decades of destruction, dilapidation, and mismanagement.
The completed constitution must be clean, free from contradictions and issues left for negotiations. The final version should consolidate the sovereignty, territorial integrity, political independence and unity of the FRS.
Dr. Mohamud M. Uluso
[email protected]
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