Constitutional Review Process: Best Practices
Around the world, there is not a perfect “single model” to implement a Constitutional Review Process, nor is there a definitive data supporting a single model for a post-conflict fragile setting, such as Somalia. However, constitutional experts are in general agreement that there must be a determined commitment to put aside short-term personal or partisan advantages and to consider the long-term welfare of the broader political community.1
A constitution is defined primarily as a “social contract” that governs life, rights and freedoms, and citizen responsibilities. In addition, a constitution defines the laws and principles that guide a Government’s work. Since attaining independence in 1960, three Constitutions were implemented in Somalia: two National Charters, and the current Provisional Federal Constitution (PFC) of Somalia (2012). Generally, constitution-making processes undergo four distinct phases2:
a) The preparatory phase, consists of the consultative process, agreeing on modalities for constitution-drafting process, and agreement on constitutional principles.
b) Constitution-drafting phase consists of the nomination of Constitutional Committee, consultations with constitutional experts, and to commence constitution-drafting.
c) Public consultations phase is the period of time underpinned by vitally important public consultations and awareness campaigns.
d) Constitutional review and adoption phase is defined by constitutional review and referendum process.
Positive outcomes of a successful process are transformative and the process taken “can assist to build and maintain trust, engendering a sense of commitment to a shared state.”3 Jennifer Widner, who has written on constitution-building in post-conflict settings, states: “Constitution-building programs that exclude key players or social segments generally result in short-lived documents.”4
The legal bodies tasked with implementing the process remain extremely vital to the inclusivity and legitimacy of the said process, especially from the viewpoint of legitimate political stakeholders and the wider public. Widner asserts that, “the character of the main deliberative body is often the primary focus of interest, possibly on the grounds that its character and composition send strong signals about representativeness to the public-at-large.5
1.1. MOU on the Constitutional Review Process
According to the Memorandum of Understanding (MOU), signed on March 8, 2015, in Mogadishu, Somalia, the Constitutional Review Process in Somalia is underpinned by seven specific principles in order to produce an agreed-upon and finalised Federal Constitution that is legitimate and secures the national interest of the Somali people. The MOU identified the seven principles as follows:
1.1.1. Somali Ownership
1.1.6. Collaboration and Coordination; and
This Puntland Government Policy Paper aims to examine the overall conduct and performance of the Somali constitutional review process, the application of the seven principles and subsequent flawed process, and proposals for reforming the process and fostering an inclusive way forward.
Since 2007, a number of constitutional committees have been busy in drafting a negotiated and agreed-upon Federal Constitution. This was finally achieved, in August 2012, when the 835-member National Constituent Assembly (NCA) ratified the Provisional Federal Constitution (PFC) of Somalia. Chapter 15 of the PFC clarifies the procedures, responsibilities, obligations and mandates of the constitutional review process. Other constitutional provisions require that Federal Government of Somalia (FGS) and Federal Member States (FMS) to engage in direct political negotiations and agree on outstanding national issues. After a negotiated agreement is finalized, the constitutional review bodies – the Independent Constitution Review and Implementation Committee (ICRIC) and the Parliamentary Oversight Committee (OC) – may play their legitimate role, guided by negotiated agreement between FGS and FMS.
Somalia’s Constitutional Review Process
In August 2019, Special Representative to the U.N. Secretary-General (SRSG) to Somalia, Ambassador James Swan, said at a U.N. Security Council Briefing: “The Federal Constitution, once adopted, will provide a common vision for all Somalis, while defining clearly the respective roles of the organs of the federal state, and relations with and between federal member states. Progress has been made in the technical review process but Somalis now need to pursue an inclusive dialogue to reach an agreement on outstanding critical issues, including the allocation of powers, intergovernmental relations, system of governance, resource sharing, and the status of Mogadishu.”7
2.1 Unrealistic Deadline
The FGS has recently put a June 2020 date on finalization of the constitutional process.8 However, this date is highly improbable due to a number of significant factors that precede completion of the said process, including:
2.1.1 The process has violated constitutional requirements for FGS-FMS political negotiations on the major outstanding issues;
2.1.2. The process has been fraught with significant flaws and internal failures that compromise the outcome of a legitimate constitutional review supported by FMS and other political stakeholders;
2.1.3. The process lacks sustained consultations over constitutional provisions concerning the two levels of government in the Federal Republic;
2.1.4. The constitutional review bodies exclude state delegates, as required;
2.1.5. limited public consultations to increase citizen participation in the process and therefore further strengthen its legitimacy;
2.1.6. Some international partners or organisations have correctly identified key challenges and unique circumstances that prevent the finalisation of the Federal Constitution in a collective and timely manner. For example, in its annual report, the MPTF states that the challenges to the constitutional review programme for 2018 included, “…a dissonance between political realities and the constitutional text; harmonizing of the Federal Constitution with the draft state constitutions, competing political ideologies.”9
2.2.1. The aspirations of process were Somali Ownership, which was defined in the Memorandum of Understanding as: “The parties to this agreement share the deep conviction that the Constitution must be an expression of the aspiration of the people of Somalia. All parties commit to ensure that the ownership of the Constitution lies with the people of Federal Republic of Somalia and that the process is conducted in the Somali language.”
2.2.2. The key ingredient to any process is the ownership of that process. However, the word ownership is easier toted than implemented. The International Community has been heavily invested in the Somali constitutional process since its inception (The UN Envoy signed as witness to the 2012 Provisional Federal Constitution). Since then, the IC has supported two phases of Constitutional Review Programmes aimed at building capacity and creating an enabling environment for the process to thrive. With that level of involvement, there is a trade-off associated with that kind of international support. Dr. Kristi Samuels argues that, in similar circumstances, there is a trade-off to international support, which is local ownership, making it hard to assess if demand for the process is externally or internally driven.10
2.2.3. The Institute for Democracy and Electoral Assistance (IDEA) highlights the risks of capacity building centric programs initiated by international stakeholders to constitutional processes. According to one observer: “Donors tend to assume the role of teaching ‘them’ (politicians and people of so-called fragile states) how to do ‘our’ (the western developed donor states’) institutions better.”11 He further warns that approaches like these run the risk of making state-building merely a technical exercise, “limited to enhancing the capacities and effectiveness of state institutions.” IDEA believes that the constitutional process should be locally driven, and it can be “counterproductive if external stakeholders have too prominent a role.”
2.2.4. UNDP Constitutional Review Support Project aims to “strengthen the capacities of and facilitate coordination and consensus-building between the different state and non-state actors involved in the constitutional review process.”12
2.2.5. A Somali public policy institute, Somali Public Agenda, in a 2018 piece on the constitutional review process, writes: “The lack of Somali policymakers’ interest in investing in the federal constitution combined with the international community’s determination to contribute to the design of it has ensured that the review process remains an endless mission. Indeed, the creation of many constitution institutions and the conflict among them can be partly explained by the continuing availability of donor funds for the process.”13
2.2.6. In a 2018 annual report on the Constitutional Review Programme, the Multi Partner Trust Fund states that “a realistic plan is critical to address these matters during the 11th Parliament.”14 Yet, in 2017, the MPTF cited support to a master plan that was later rejected by ICRIC accusing MoCA of infringing on its mandate.15
2.1 Inclusion, Collaboration and Coordination:
2.3.1. The MOU defines “Inclusion” as: “The Somali people shall be consulted and given an opportunity to express their opinions directly and through their political representatives in the Federal Parliament, at the level of Federal Member States and Interim Regional Authorities, and civil society structures.”
2.3.2. The third principle of the MoU was “Collaboration and Coordination”: “The parties agree that both the effectiveness and the efficiency of the process and its outcomes depend on the level of collaboration and coordination achieved. The parties commit to working collaboratively and to implement this process in a coordinated way.”
2.3.3. Puntland State has reiterated the need for a process that is inclusive, however, this has been ignored. Jan Amilcar Schmidt, a Research Fellow and Country Manager at Max Planck Foundation, wrote a piece called Taking Stock on the Somali Constitutional Review Process, noting that the government of Puntland “was not formally consulted and their representatives included when the Somali Federal Government and Parliament set up the constitutionally mandated review institutions of OC and ICRIC.”16
2.3.4. Below is a collection of independent sources reporting on internal disputes within the constitutional review bodies:
2.3.5. Somali Public Agenda writes: “There have been numerous clashes and deadlocks between the Ministry of Constitutional Affairs and the constitution review commissions over their respective mandates and roles in the review process, which has resulted in delays.17
2.3.6. In 2017, Heritage Institute for Policy Studies (HIPS) wrote: “The process was contentious as ICRIC and OC worked separately and have different views. An MP who represented Puntland in the OC once walked out of the discussions and took to the airwaves criticizing the process.” 18
2.3.7. HIPS, in a separate report, writes: “Each of the three state organs (MoCA, ICRIC and OC) views itself as the undisputed lead actor, and the competition over resources is stiff. Previously, the three entities had worked in parallel and in a duplicitous fashion and had publicly squabbled. They produced competing drafts and recently begun pushing various agendas into the public domain and, crucially, among the international community.”19 The report continues to identify rifts among the responsible bodies: “MoCA circulated a draft master plan on the review process, which ICRIC branded as unconstitutional and a clear usurpation of its power. Puntland also rejected the ministry’s master plan.”20
2.3.8. Government Policy Position:
2.3.9. Article 134, Clause 2 of PFC, stipulates: “At the beginning of the first term of the Federal Parliament of the Federal Republic of Somalia, the relevant Minister shall nominate to the Prime Minister five members of the Review and Implementation Commission whom the relevant Minister selects from short lists prepared by the Council of Ministers. In addition, existing Federal Member States shall nominate one additional delegate to the Review and Implementation Commission, based on the same selection criteria.”
2.3.9. Puntland Government declares that, up to now, State Delegates who are supposed to be members of ICRIC have not been allowed to join the Committee, which is a violation of a constitutional article, and renders invalid the constitutional review process submitted to Federal Parliament.
2.4. Transparency and Participation
2.4.1. The MOU defines “Transparency” as: “The parties shall conduct all proceedings and decision making in a transparent manner and ensure that proceedings and hearings are made accessible to all. All consultations shall be conducted in a way that is open to the input from all segments of society.”
2.4.2. “Participation”: “The parties commit themselves to a broad public participation process in which the Somali people are consulted.”
2.4.3. Participation and transparency are key to constitutional processes. A key indicator of this is public knowledge and awareness. Experts agree that “people who are better armed with information about principles and institutions are more likely to police their governors than those who know little.”21
2.4.4. The UN experience in constitution making in post-conflict countries has a set of best practices for garnering participation, which focus on, public dissemination of constitutional review results, how differing views were considered and accommodated, and how key decisions were made to be harmonised into the constitution.22 It also calls for “a legal mandate and clear roadmap for the process which clearly indicates to the public at what stages they can participate and how.”23 Another key aspect it calls for is, “transparent mechanisms for sharing drafts of the constitution and following deliberations on the draft by the constitutional organ adopting the constitution.”24
2.4.5. Government Policy Position:
184.108.40.206. Somalia has suffered from a process of unrealistic timelines and lack of political will, which has ensured the process lags and is characterised by limited participation. In 2017, HIPS reported that, “harnessing and incorporating the views, values, and aspirations of the Somali citizens has been wholly inadequate.”25 Since then, little has changed and the same trajectory has been followed with a heightened zeal for social media presence by MoCA, likely a result of the UNDP project for the Constitutional Review Process.26
220.127.116.11. A 2018 study entitled “Citizens’ Understanding of the Constitutional Process”, conducted by New Access International (NAI) a Somalia-based civil society organisation and development agency, a dismal 19 percent of respondents interviewed about the constitutional process knew about the meeting outcomes, the meeting purposes or the locations of the meetings.27 But more than half remembered viewing social media posts of the Constitutional Review Process meetings. An overwhelming 97 percent of respondents did not attend any constitutional review meeting/s.
18.104.22.168. State delegates were excluded from ICRIC body and therefore the participation of FMS officials was used merely as “Photo-Op Opportunities” by MoCA and other bodies. The first interregional conference between the FGS and FMS on the constitutional process occurred in April 2019. As the press release indicates, the forum that occurred in Kismayo was “…the first time these stakeholders had the chance to exchange their views on substantial constitutional review issues as well as on a joint strategy and workplan for finalising the federal constitution.”28
22.214.171.124. ICRIC’s mandate is to draft amendments to the Provisional Constitution, based on political negotiation outcome and public consultations. Then, the Joint Parliamentary Oversight Committee reviews the draft amendments, and presents them to the Federal Parliament.29 But there is a dissonance among key stakeholders as to the primary functions of these bodies. Max Planck Foundation, an agency mandated to provide technical assistance to the CR process, believes that the “The Oversight Committee is mandated with preparing and leading the constitutional review and implementation process as provided for in the Provisional Constitution of Somalia.”30 But Article 133 of the PFC clearly stipulates that the OC “shall oversee, direct and approve the work of the Review and Implementation Commission, and, generally, the implementation of the Constitution.”31
Puntland State’s Legitimate Concerns
State Government institutions excluded from constitutional review:
3.1. Article 133, Clause 8, Sub-clause E of PFC stipulates: “Engage Federal Member State legislatures and incorporate harmonized submissions into the proposed amendment, where the matter concerns Federal Member State interests.”
3.2. Puntland Government declares that Federal Parliament passes laws, without adequate consultations and review by Puntland Council of Ministers and House of Representatives (state parliament), a direct violation of constitutional principles of federalism founded on consultations and consensus-building.
3.2. FGS lack of consultation with FMS in decision-making processes:
3.2.1. Article 54 of PFC, “Allocation of Powers”: “The allocation of powers and resources shall be negotiated and agreed upon by the Federal Government and the Federal Member States (pending the formation of Federal Member States), except in matters concerning: (A) Foreign Affairs; (B) National Defence;; (C) Citizenship and Immigration; (D) Monetary Policy, which shall be within the powers and responsibilities of the federal government.”
3.2.2. The PFC has given way to a period that is in essence transitional, as the main contentious issues within the PFC can be summed up as the nature of federation and subsidiary. While this political climate continues to be the norm, the FGS has not made sincere efforts to engage in genuine political bargaining because political agreement will require concessions from both the centre (FGS) and periphery (FMS).
3.2.3. The Federal Model of Somalia is based on Cooperative Federalism, in line with the spirit of PFC, rooted in broad-based consultations, cooperation and inclusive politics to solve common problems. The political atmosphere in Somalia is evident that this model of federalism is not being implemented correctly.
3.3. Puntland public absent from the Constitutional Review Process
During a constitutional review process, it is constitutionally mandated and imperative to include FMS and the Somali public in the revision and amendment process.
Puntland government reaffirms that the review process lacks the inclusion of Puntland public. Studies conducted by research organisations in Puntland have identified a general lack of understanding of the PFC. The general population is deeply misinformed on the social contract that is supposed to govern them, and therefore, cannot contribute effectively to its review process. Hence, the outcome of such a process not rooted at the grassroots level will likely not be representative or inclusive.
In 2015, the Federal Parliament decided that nine articles needed political consultation and agreement between the FGS and FMS.32 After four years of review, the nine articles continue unresolved and contentious, including:
126.96.36.199. Allocation of powers ;
3.3.3..2. Government type;
188.8.131.52. Status of Mogadishu;
184.108.40.206. Status of ‘Somaliland’ and FMS boundaries;
220.127.116.11. Resource sharing model;
18.104.22.168. Fiscal federalism ;
22.214.171.124. Federal/state court jurisdictions (judicial model);
126.96.36.199. Federal/state election jurisdictions (electoral model);
188.8.131.52. Harmonisation of Federal Constitution with FMS constitutions
3.4. Government Policy Position:
3.4.1. Puntland state shall continue to abide by its own State Constitution, ratified by a State Assembly in 2012, until such time that the PFC is adequately reviewed with full participation of FMS and other stakeholders, harmonised with FMS Constitutions, and a national referendum is carried out.
3.4.2. In contravention of constitutional principles, Puntland state was not consulted on regarding key federal laws, including laws “approved” by Federal Parliament or pending, such as Electoral Law, Petroleum Law, Taxation Law, Civil Aviation Law, Fisheries Law, and Mining Law. As such, Puntland state does not recognize the legality of the said laws – until such time that the Constitutional Review Process is completed in an inclusive, transparent and consultative process with the Federal Member States, and that the FGS regular consults with FMS on pertinent federal laws.
Way Forward: Policy Proposal
4.1. Puntland government proposes broader and more inclusive consultations that include FGS, FMS, political associations, civil society stakeholders and an accommodating political space to ensure that there is genuine and lasting political agreement.
4.2. Puntland proposes that a political negotiation mechanism should be established immediately, such as formation of “National Cooperation Council” (NCC) – chaired by Prime Minister and with membership of five FMS Presidents. The NCC should be established and mandated by law (“NCC Law”) and its role eventually harmonised into Federal Constitution. Among the NCC’s key tasks is negotiating a lasting agreement on the nine Contentious Articles.
4.3. A final decision on the status of the self-declared “Somaliland” polity must be included in the negotiated and finalised version of the Federal Constitution. Puntland has a long-running territorial dispute with “Somaliland” which has led to years of armed clashes and civilian displacement; as such, Puntland as representative polity for local communities in Sool, Sanaag and Ayn regions, must be included in any legitimate dialogue process between FGS and “Somaliland”.
4.4. Puntland proposes a thorough review of Constitutional Review Process, from inception to implementation, to identify procedural gaps, clarify roles and responsibilities, and ensure clear roles for FGS, FMS, civil society and broader public participation.
4.5. Puntland cautions against a rush to accept the outputs of the constitutional review process without deeply understanding the implementation process and its wider implications, which can likely incite an outcome that obstructs genuine political reconciliation and potentially cause further setbacks, as Somali nation- state attempts to move beyond its violent past.
4.6. In 2016, following an impending election process, the constitutional review process was put in abeyance as the MPTF report cited: “With the coincidence of other political processes and events, such as the electoral process, political leaders did not give the constitution making process the support it required.”33 Currently, Somalia finds itself in the same political predicament, as in 2016, and the divergent views on the preferred electoral model dominates the political landscape and still there is no agreement. It would be imprudent to expect that the nature of federalism and how this translates to establishing a constitution that is representative will be decided upon in the coming five months.
4.7. To strengthen commitment to the review process, Puntland calls for a Somali National Constitutional Conference to present the findings of the process, review findings and negotiate the way forward for an actual and realistic completion timeframe for the Federal Constitution Roadmap. This conference should have genuine commitment to achieve goals and objectives, should be detailed and publicly transparent in nature, and pave the way for broader and regular consultations among the Somali stakeholders.
Puntland Government of Somalia
1 See generally Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111YALE L.J. 399 (2001).
2 PUNSAA, “Puntland social society insights”: Reflections on Somali’s Past and Present constitutions and Prospects for the future” page 17, December 2018
3 Accord Issue 25, Legitimacy and peace processes From coercion to consent, Conciliation Resources, pg 56, available at http://www.c-r.org/accord/legitimacy-and-peace-processes/constitutional-review-%C2%A0peace- processes-securing-local
4 Jennifer Widner, Constitution Writing in Post-conflict Settings: An Overview, pg 9, William & Mary Law Review, available at https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1151&context=wmlr
5 Ibid pg 12
6 MoU between the Ministry of Constitutional Affairs, the Oversight Committee, the Independent Constitutional Review and Implementation Commission, available at http://moca.gov.so/ducoments/
7 SRSG James Swan – Remarks to the Security Council on the Situation in Somalia, 21 August 2019 https://reliefweb.int/report/somalia/srsg-james-swan-remarks-security-council-situation-somalia-21-august-2019
8 Somalia Partnership Forum concludes with a new plan of action for the country. https://reliefweb.int/report/somalia/somalia-partnership-forum-concludes-new-plan-action-country 9 United Nations Multi-Partner Trust Fund (MPFT) Annual Report 2018, pg 9
10 Dr. Kristy Samuels, State-building and Constitutional Design after Conflict, pg 11
11 Constitution Building after Conflict: external support to a sovereign process, pg 13, The Institute for Democracy and Electoral Assistance (IDEA)
12 Ibid, pg 18
14 United Nations Multi-Partner Trust Fund (MPFT) Annual Report 2018, pg 9
15 In the 2017 MPTF annual report, the constitutional programme supported the developing and adhering of a Master Plan by MoCA, which was immediately shot down by the ICRIC claiming that the master plan infringed on their mandate.# In one instance, the programme states that there needs to be a realistic plan put in place, but on the other hand, was supporting the quick implementation of deliverables without considering its impact. The IDEA Policy Paper further goes on to warn about technocratic practices that have “relatively easy implementation”.
16 Jan Amilcar Schmidt, Somalia’s Constitutional Review Process Taking Stock, available at http://constitutionnet.org/news/somali-constitutional-review-process-taking-stock 8 March 2017 17 Creating an Enduring Constitution for Somalia, Somali Public Agenda, available at http://somalipublicagenda.org/creating-an-enduring-constitution-for-somalia/
18 “Somalia’s parliament should produce a constitution by and for the people”, pg 8, Heritage Institute for Policy Studies (HIPS), February 2017
19 Heritage Survey of Public Opinion on Somalia’s Provisional Constitution
20 “Survey of Public Opinion on Somalia’s Provisional Constitution”, pg 1, July 2017
21 Jennifer Widner, Constitution Writing in Post-conflict Settings: An Overview, pg 9, William & Mary Law Review, available at https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1151&context=wmlr
22 Constitutional Assistance in Post-Conflict Countries The UN Experience: Cambodia, East Timor & Afghanistan
23 Ibid, pg 4
25 Heritage Constitution for all
26 UNDP Project Document Constitution Review Support Project (CRSP-II), 2018, pg 17: “Support establishment and maintenance of the MoCA website and social media accounts:”
27 New Access International
28 First Interregional Conference for the Somali Constitutional Review Process, Max Planck Foundation, available at http://www.mpfpr.de/news/details/id/698/
29 Somalia’s Constitutional Review Process, UNSOM, available at https://unsom.unmissions.org/sites/default/files/somalias_constitutional_review_process.pdf
30 Support to the Constitutional Review and Implementation Process, Max Planck Foundation, available at http://www.mpfpr.de/projects/country-based-projects/somalia/support-to-the-constitutional-review-and- implementation-process/
31 PFC of Somalia (2012)
32 ‘Puntland social society insights: Reflections on Somalia’s Past and Present Constitutions and Prospects for the Future” pg.17, December 2018.
33United Nations Multi-Partner Trust Fund (MPFT) Annual Report 2016, pg 7
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