By Roble Dahir, Center for Social Development (CES)
Introduction
It has been 20 years since the establishment of the federal government in Somalia, yet the country still lacks fundamental principles and laws to govern it. The implementation of the federal system, including the constitution-making process, has been a contentious issue for a long time[1]. The establishment of the Somali Government came after 14 years during which Somalia remained without a government. This was achieved through a two-year-long conference hosted in Kenya, supported by the international community, which convened nearly 2000 delegates including active stakeholders and representatives from Puntland for the purpose of reconciliation and the building of a Somali State.
The conference led to the formation of the Federal Government and the development of a national charter, which later transformed into the provisional constitution. The reconciliatory state-building conference concluded in 2004 with the election of President Abdullah Yusuf Ahmed as the first president of a federal Somali State[2]. Somalia’s constitution has remained provisional since 2012 when 825 delegates represented the clans and the existing federal entities of Puntland & Ex-Galmudug, as well as other political groups that existed at that time (ASWJ)[3] and later the transitional federal government, approved the draft constitution in Mogadishu as provisional federal constitution[4]. The constitution became a subject of dispute when the federal government made changes to certain articles between 2013 and 2023. These articles pertained to power-sharing, resources, the status of Mogadishu – the capital city, and other significant executive powers and roles. As a result of the changes, some of the responsibilities that were previously held by the Office of the Prime Minister were transferred to the Presidency[5]. In addition, the political power-sharing formula that exists in Somalia to distribute political positions among the four major clans and collection of others, known as the 4.5 formula, is not constitutional; it is an unwritten agreement for the transitional period[6].
Puntland is the only state in Somalia that had a constitution before the federal government was established. It played a major role in the process of building the state, and its constitution grants it powers as an independent government. However, the two constitutions -Puntland and the federal one- need to be harmonized so that the federal constitution becomes a national constitution that is accepted by all parties involved[7]. During various meetings among national leaders, the topics of natural resource production, maritime resources, and their sharing were discussed, resulting in the issuance of communiqués[8]. Unfortunately, Puntland was not present during these meetings, and as a result, the implementation of the agreements has been difficult due to political issues and contentious article within the constitution[9].
Similarly, it took a long time for Puntland and the Federal Government to agree on the issues related to fiscal federalism, which would increase the federal government’s revenue if it could have collaborated with Puntland[10]. Somalia’s debt relief process ended with Puntland having questions, concerns and the relationship between the two sides have been unhealthy[11].
Over the past two years, the relationship between Puntland and the Federal Government has not been good. This has negatively impacted the country’s political progress on various fronts including the war on terrorist groups, intergovernmental relations, international aid coordination, and the completion of the constitution. A new political culture has emerged among national leaders in Somalia, where each Federal Government and Federal Member State prioritizes their political agendas and interests in relation to the elections. Moreover, in May 2023, the federal government and the southern States of Somalia agreed to unify the country’s elections. To accomplish this goal, all Federal Member States (FMS) have been granted an extension[12]. The majority of FMSs have extended their terms beyond the mandated limits. Villa Somalia has aided them in this process by extending their terms in return for their support of the controversial process of amending the constitution[13].
Reflections on Constitution Review Process
The process of reviewing the constitution requires a stable political environment that enables political stakeholders to have healthy debates and negotiate articles that may require further discussion[14]. Article 54 of the federal provisional constitution of Somalia states that “the federal government and the member States of the federation shall negotiate on how to determine the issues of power-sharing and the economy”[15]. This reflects the provisional constitution review process in which the Federal Member States intend to negotiate with Federal Government on outstanding protracted issues that need negotiation. However, the public opinion perceives that the limited role of the cabinet and Office of the Prime Minister, coupled with the fact that the President of the Republic has taken over the role of the Prime Minister, renders this article dysfunctional and ineffective[16]. As of now, the constitutional court has not yet been established, leaving the President of the Republic as the only available avenue to balance debates between the federal government, parliament, and FMSs. However, the President is playing the role of the executive branch, which makes the country lack the status of the Head of State. The Head of State is mandated to unite the people, be trusted by all stakeholders, and act as a symbol of national unity, as stated in Article 87 of the provisional constitution[17].
The debate is not over the review of the constitution, but rather the methodological procedures and agreements being applied, which are not inclusive. Additionally, the proposed changes such as eliminating the position of the Prime Minister and adopting two-party system are seen as potentially divisive and risky for the country’s political landscape[18]. Interviews with political elites revealed that an inclusive process involving all stakeholders is crucial for the constitution review process, with three key engagements being indispensable[19]. (I) The work of the Independent Constitutional Review Commission (ICRIC) and Parliamentary Oversight Committee (OC) should be politically and financially independent in order to receive technical contributions, facilitate political dialogues, negotiate, and consult with the public, civil society organizations, and experts as stated in Article 133 & 134 of the Provisional Constitution, (II) to restore inclusivity among the national leaders to negotiate issues that need further negotiations such as long outstanding contentious issues in security, powers and resources so as to be in agreement and apply to the constitution review process, and (III) the political stakeholders to agree on the guidelines and procedures of reviewing the constitution. The recently approved parliamentary procedure is seen as serving the political interests of the current FGS regime[20]. If all stakeholders do not agree on the procedural review process of the constitution, it will result in a one-sided outcome that undermines the parliamentary debates, leading to an illegitimate and incomplete constitution[21].
Read more: Political and Constitutional Crisis Looming in Somalia
Roble Dahir
Center for Social Development (CES)
[1] Abdi Farah Said (Juha), Minister of Interior of Puntland speaking at the inauguration ceremony of the President of Puntland on 25 January, 2024. In attendance, all political stakeholders including the President of the FR of Somalia.
[2] The Somalia Conflict/Implication for Peacemaking and Peacekeeping Efforts/Institute for Security Studies
[3] Ahlu Sunna Wal-Jima’a- traditional religious group in Galgadud region
[4] Heritage Institute/Survey of Public Opinion on Somalia’s Provisional Constitution/2017
[5] CES KII Interview, February 2024
[6] Report of the Secretary General on the Situation in Somalia/UNSC/8 October 2004
[7] Constitution of Puntland State and the Provisional Constitution of the Federal Republic of Somalia.
[8] CES KII Interview, February 2024
[9] Mr. Mohamed Abdiwahab, Minister of Justice and Constitutional Affairs of Puntland speaking to the local media
[10] Communique issued by the Minister of Finance of Puntland.
[11] CES KII Interview, February 2024
[12] Communique issued by the NCC meeting in May 2023 in Mogadishu
[13] CES KII Interview, February 2024
[14] CES KII Interview, February 2024
[15] Provisional Constitution of the Federal Republic of Somalia
[16] CES KII Interview, February 2024
[17] Provisional Constitution of Somalia cited by MP Abdirahman Abdishakur speaking at the session of the House of the People in Mogadishu
[18] Communique issued by the NCC meeting in May 2023 in Mogadishu
[19] CES KII Interview, February 2024
[20] CES KII Interview, February 2024
[21] CES KII Interview with political elite in Garowe, February 2024
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