By Dr. Mohamud M. Uluso
Saturday July 8, 2023
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]