By: Abdulwahid Qalinle
Wednesday, August 29, 2012
After years of civil strife and political chaos, there is a cautious yet unmistakable optimism that the end of the transition period in Somalia, so long in anticipation, could herald new era of peace and stability in the war-tired country. The recent endorsement of provisional constitution and formation of a new parliament represent significant milestone in Somali politics. And despite allegations of behind-the-scenes political efforts involving bribes and intimidation in the selections process, members of the new parliament include a cadre of distinguished Somalis with proven records of individual accomplishments.
While the denouement of the latest political wrangling in Mogadishu has yet to be written, the “writing on the wall” suggests that the quest for nationhood may have reached a turning point. In particular, I believe that, perhaps more than anything else, Somalia’s future will be defined by the actions of the new parliament regarding the following crucial areas within its prerogatives:
i. Legislation
Lawmaking, or legislating, is the most important work of a parliament. Carrying out this role effectively is not easy. It requires knowledge and expertise in the technicality of legislative issues and processes. Marked by low expectations, Somali’s now-defunct transitional parliament failed spectacularly in its fundamental duty to legislate for the country. Although it has faced undeniable security-related challenges yet its abysmal legislative record has had a decisively destabilizing effect on the Transitional Federal Institutions and represented a perilous neglect of parliamentary responsibility.The end of the so-called transition, once again, puts the country squarely at a crossroads. If handled properly, it can lead on the road to a stronger and more stable democracy and development. If not, it can destroy the gains made so far and result in chaos and conflict. At this crucial juncture, Somalia, a nation deeply affected by the political paroxysms of more than two decades of conflict, rightfully deserves a legislative and representative body of the people and not just another hyper-politicized venue for political horse-trading, the modus operandi of the old parliament. Fortunately, the expertise of so many members in the new parliament could usher in a new era of respect for the rule of law, accountability, transparency and a return to the primary functions of parliament: representation, lawmaking, and oversight. A substantial course correction is urgently needed to restore the faith of the Somalis in their lawmakers. To do that, the new leadership should;
A. Immediately set up parliamentary committees. Introducing effective committee system would allow the new Somali parliament to manage and develop expertise within its membership and conduct thorough examinations of proposed legislation, executive actions and national policies and regulatory regimes. It also enables it to investigate how the government spends money in the budget. As key organs of parliament, these committees require highly qualified staffs that are familiar with parliamentary procedures, law and legal drafting.
B. Take immediate legislative measures to replace the confusing patchwork of the “laws” adopted over decades of conflict and dictatorships, combined with the multi-layered system of jurisprudence that contains elements of secular, Sharia and customary or traditional tribal law, and introduce a uniform system of law that meets the international legal standards and reflects the ideals enshrined in the provisional constitution.
I’m confident that the new Speaker, Prof. Jawaarey, a skilled technocrat with unimpeachable record in public service, will provide the kind of competent leadership needed for effective legislative branch.
ii. Implementation of Federalism
I have publicly expressed my reservations about the suitability of Federalism for Somalia. While I fully recognize the importance for self-governance and autonomy, something that can easily be achieved through a decentralized unitary system as well, the governing concept laid out in the provisional constitution establishes, in my view, excessive decentralization of a confederation disguised as federalism. The trouble with this severely unthoughtout system, so perplexing, labyrinthine and unintelligible, is that its implementation involves a web of profoundly technical and potentially destabilizing political challenges. Case in point: the process of creating top-down Member State entities (Dawladaha Xubinta ka ah!!) on tribalistic tendencies which is bound to revive the animosity and wounds that exacerbated the civil war.
But regardless of whatever our personal opinions are, we will have to come to grips with the reality that it was “endorsed” by a national Constituent Assembly of more than eight hundred Somalis. The immediate challenge before the new parliament, therefore, is how to set a reasonable timetable to legislatively determine effective and successful implementation of the federalism. For example, the parliament could set implementation period of five years or more effective the day a specific resolution/legislation dealing with federalism is passed into law. Five years may be a sufficient time to have the basic federal features implemented including the delicate and politically toxic process of creating Member States. Some features may also be gradually implemented once these Member States are up and running. Again, five years may be too long for some Member States, yet too short for others, thus it is incumbent upon the new parliament to look for a reasonable time frame to ensure a smooth and orderly transition. This allows some breathing space for Member States to decide on several needs such as where to locate their Member State’s capital in some are unsatisfied with the regional capitals created under the eighteen pre-1991 regions.
It is possible that some services like internal security and policing services may take much longer to be fully implemented by Member States too. So, Somali’s Federal Police which shall be retained as the national police force will have to ensure law and order in the country. It is also entirely possible that some Member States may decide to contract police services from the Federal government, while others may opt to set up their own local police departments. This is what some provinces in Canada do. Incidentally, Alberta, Canada’s richest province on a per capita basis, along with other poorer provinces chose, through Provincial Police Service Agreement (PPSA), to contract policing services to the federal government, while other provinces of Ontario and Quebec set up their own police units. Whether this is adapted in Somalia, shall be up to the respective Member States to weigh the pros and cons involved. But it is appealing because it ensures continuity of services during and after the implementation period. Recall the taxation models too. Some Member States may decide to contract the federal government through its revenue collection agencies to undertake tax collections on their behalf, while others may decide to enforce their own tax policies. On the judicial front, Member States shall need time to put into place their own justice systems. Member States will also have to decide on what parliamentary models to adapt. For example, while most States in the US have bicameral system - two chambers of parliament, the State of Nebraska has a unicameral system. These are decisions to be undertaken by the respective Member State leaders and even voters within the transition. A reasonable time frame allows Member States to decide the best way forward. There is no question that local needs in Somalia are diverse and only a gradual transition to federalism will allow Member States to tailor policies to meet local capabilities and needs.
iii. Review & Implementation Commission
Article 134 of the provisional constitution foresees the establishment, through the legislature, of Review & Implementation Commission. The article reads, in part, “This Constitution establishes the Review and Implementation Commission as a Commission subject to the overall direction of the Oversight Committee in accordance with Article 13…….” and goes further to enumerate its powers and method of appointing its members. During the debates about the new constitution, my view was that a true development of the nation's constitution needs careful planning and an appropriate environment for the delicate work that is constitution making. Many observers believe that the entire constitution-making process was rushed and somehow become someone’s cruel experiment in State building. Fortunately, Article 134 authorizes the RIC to conduct full assessment of the implications of various critically important constitutional provisions, such as those relating to federalism and role of Islam, which, if put to a popular referendum, could cause major debate and conflict. The new parliament and the cabinet, therefore, should move quickly to constitute this Commission and allow it to develop the types of mechanisms foreseen in the Constitution for the supervision of its orderly implementation.
iv. National Legislative Research & Training Center (LRTC)
In view of the increasingly complicated functions of a modern parliament and the need for boosting the resources and legislative capabilities of the new parliament, it may be worthwhile to pass a legislation establishing a national Legislative Research & Training Center (LRTC), which would act as a center of excellence and conduct research in the legislative & regulatory affairs. It would also provide training programs for the newly elected MPs to familiarize them with parliamentary practices and procedures, legislative drafting, core areas of governance and inter-parliamentary affairs.
Finally, I cannot overemphasize the critical role that these 275 men and women could play in reviving our broken nation. They are, at once, faced with both monumental challenges of historic proportions and a unique opportunity to change the destiny of their country. It is, indeed, enormous trust that is placed upon their shoulders, as Almighty said in the Quran “Allah doth command you to render back your Trusts to those to whom they are due…..” Al Nisa (58). We shall wait and see!
* Adjunct Associate Professor of law at the University of Minnesota Law School. He can be reached at: shei0038@umn.edu