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Somalia's Draft Constitution: Too Undemocratic?
Think Africa Press
Tuesday, July 03, 2012

Many Somalis are deeply unconvinced by the heavily internationally-involved constitutional drafting.

The peace and reconciliation process in Somalia has entered a critical juncture. A new constitution, drafted with the help of the United Nations Development Programme, is scheduled to be adopted in the next few weeks. It is hoped that the new constitution will help deliver peace to a country ravaged by more than two decades of civil war, but international optimism is not shared by many Somalis, who instead look with deep scepticism at a document that they perceive as externally-imposed, faulty and fundamentally undemocratic.

A flawed constitution

The new Somali constitution has been met with resistance by educated Somalis, religious figures, secularists, former Somali Prime Ministers, scholars and many Somali diaspora organisations for a number of reasons.

Firstly, there are issues concerning the content of the constitution and the substance of its provisions. Above all, the question of federalism remains deeply divisive. Views can be found both in support of and against Somalia adopting a federal structure. Those against the shift to a federal state appeal to: the homogeneity of Somalia’s population; the lack of resources (human and financial) which would be needed to run a federal state apparatus; the potential divisiveness of adding a territorial layer to an already complex situation. They question why the rocky road of federalism is necessary or advantageous for institution-building in Somalia.

Secondly, there is the issue of self-determination. Under international law, the right to self-determination gives the people of independent states the right to choose which political and economic regimes form the basis of their state structure. Any new constitution must be reached through a free expression of the will of the Somali people. But initial plans to hold a referendum to consult the Somali people on adoption of the new federal constitution were discarded on security grounds. The document will now be voted by an 825-member Constitutional Assembly which shall, according to the transition agenda, be representative of the whole of the Somali people. Whether this is an acceptable standard under the international law on self-determination is a question which deserves further scrutiny.

Thirdly, there are wider issues concerning the process through which the new constitution has been drafted and surrounding both the way and the timing in which it will be adopted. Somalis rightly claim that this process is undemocratic, non-transparent, non-Somali owned and inappropriate to the ends it purports to serve. Some ask why a new constitution is to be drafted now, at a time when the country has no elected or truly representative body to oversee the process of its formation. Drafting a constitution which is not the result of peacemaking but which is itself a constitutive act of peacemaking is a bold experiment. It could possibly work, but only as long as the premises on which the document is drafted are themselves an act of peacemaking, and not an exercise in the usurpation of power. This cannot be said of the process which has brought the new document into being.

The new Constitution was brought to bear by a process which is affected by the very same flaws that it is supposed to address: lack of representation, divisiveness, and a detachment from the will of the people. Can it be reasonable to expect a constitution, drafted in the midst of conflict, under the lead of a desperately weak government and the heavy pressure of foreign interveners, to successfully lead Somalia towards representative democracy? Nation-building is a complex phenomenon and its sustainability is inherent in democratic legitimation. Where its foundations are shaky, its future will inevitably be in peril.

Resistance and threats

On the whole, the lack of a functioning government in Somalia is a problem both for Somalis and for the international community. The international community laments the country’s weak and ineffective political institutions and security apparatus. The Somali people, in addition, lament the lack of legitimate institutions that speak with their voice. The international community’s approach of ‘benchmarks now, legitimacy later’ has been met with resilience, but the US threat of sanctions against spoilers aiming to obstruct the peace process has given teeth to an inherently flawed constitution-making process.

In Somalia, the international community assisting with constitution-making seems to have, once again, crossed the fine line which separates assistance from interference. What comes next is a gamble. Will the process of transition deliver and if so, at what cost for the sovereignty and political independence of Somalia?

It is understandable that Somalis look at the new constitution with scepticism and disenchantment. The process which brought this document into being falls short of international standards on self-determination and the rule of law. The answers as to why adopting a new, federal constitution in a matter of weeks should be a step forward towards building peace in Somalia seem to be convincing for foreign actors but have not proved convincing for Somalis. The question of legitimacy therefore is an open one. The question of effectiveness, on the other hand, is what shall be watched closely in the years to come.


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