By Syed Ahmed Gashan

Preamble

At present, there are two (2) primary Constitutions in play in Somalia: a) 2012 Federal Constitution [1], and b) 2024 Constitution [2]. The latter, unilaterally adopted in 2024, compromises Founding Principles of the Federal Government of Somalia (FGS), and is ONLY binding to the FGS and three (3) Southern Federal Members States (FMSs)[1], alias South Central Member States (SC States), under the aegis of the FGS. With that, in principle, the government in Mogadishu vacated the 2012 Federal Constitution, and no longer adheres to the Political Agreements, which gave rise to its Founding Principles; instead, it seeks a heavily centralised system, and has been aggressively pushing SC States to break away from the rest of the country, with Mogadishu serving as the epicenter of power, a strategy at its core detrimental to nation state building. Conversely, the former is binding to the two (2) remaining FMSs viz. Puntland [3] in the North East and Jubaland[2] in farther South, with neither collaborating with the FGS nor recognising its legitimacy. Up North West, Somaliland[3] has been seeking secession since the collapse of the Somali government.

Backdrop

On reflection, four (4) political entities[4] flow from that viz. Somaliland, Puntland, Jubaland, and the Government in Mogadishu with SC States under its dominion, Absent the popular reverie that Somalia is a sovereign nation with a Federal government, political reality on the ground belies said symbolism in that, in reality, it is loosely coupled autonomous polities with diverging interests, lacking congruence, better describable as possessing Confederate characteristics. Said reality gained ground  at the tail of 2016 with successive Administrations at the Federal level pursuing highly centralised rule, consolidated powers, unilateral decision-making whilst violating core power-sharing and founding principles; further, successive Administrations aggressively pursued policies turning Mogadishu along with neighbouring FMSs into a single polity whilst at the same time aggressively pushing to alienate, if isolate Federalist FMSs on the periphery; for instance, wide-ranging sanctions including economic sanctions, withholdings of budgetary support and grants, suspension and/or delaying of development projects, aviation / flight embargoes amongst others had been imposed upon Federalist FMSs; adverse implications of said reductive policies shall be discussed.

The emergence of said polities are informed by there existing three (3) major competing political ideologies in the nation: a) Federal, b) Unitary, and c) Secession, as discussed by notable thinkers including Abdi Farah Sa’id “Juxa”, Ministry of Interior (Puntland) [3], Prof. Afyare Elmi [4], and Isma’il H Warsame [14].

Federalist ideology is championed by Members States including Puntland, Jubaland, and to an extent SouthWest whilst remaining SC States favour the Centrist approach beholden to the FGS owing to their close proximity to Mogadishu, interim Capital; on merit, Hiran expressed desire to be a stand-alone Member State under the Federalist banner; Somaliland has been waving the Secession flag for three decades, with a considerable shift in its standing post SSC Khatumo’s elevation to a de facto Member State.

Farther East, on the footsteps of triumphant operations against ISIS / Da’ish foreign fighters in Cal Miskad mountainous terrain in the Bari region, commenced a timely debate apropos future political configuration of the nation with Federalism once deemed comme il faut in holding together a fragmented nation mired in clan conflict and civil war lasting in almost half a century.

The discourse sharply resembles that of circa. 2002-2004, when Federalism was fiercely debated, with then opposing voices still advocating for sustaining the status quo, as they did back then of the Centrist model; further, said voices managed to hijack its implementation rendering the Federal government an odious rendition of the last military regime, albeit in no shape as capable, resourceful, or structured, now only operating in Mogadishu; in principle and in deed, it exists in name only, for insofar as the rest of the country is concerned, the Federal government is now defunct.

In practice, considering its trajectory and political organisation, Somalia lacks mature institutions to be regarded Federal, albeit bears the appellation, or even Centrist, albeit with the desire to be one, but is taking the shape of a poorly structured Confederacy merely requiring its codification in the Constitution, thereby allowing autonomous polities govern their affairs, as some currently do, sans interference, and with shared sovereignty, and responsibilities.

By convention, in political organisation, Confederacy naturally precedes Federalism, is distinct in its implementation, and differs in three primary elements, where under Confederacy:

a) There is dual sovereignty, where Power resides with autonomous Member States, 
        i) Power flows from the periphery to the centre rather than the opposite,

b) Confederate government is formed by Member States,

c)  Limited Powers are delegated to the Confederate government, thereby minimising its influence, and ability to consolidate power, or overextend its authority over Member States, 
         i) Unilateral agreements detrimental to the interest of Member States, and by extension to the nation, are not binding, and could not be enforced,

Mature Federal governments viz. the United States, Canada, and Germany have all gone through that process to reach at the Federal state with Federalism itself going through an evolution from Dual Federalism at its infancy to Cooperative to Creative Federalism at its maturity [5]. It took the U.S.[5] almost two centuries to reach at the Cooperative stage (1787 – 1990s) whereas Bosnia and Herzegovina[6] to date operates as a Confederate, albeit formed in 1992. Of relevance, in the U.S., is the Bill of Rights representing the first Ten Amendments to the Constitution was introduced to protect rights of the citizenry, granting greater autonomy to the States whilst constraining Federal Powers. Relevant U.S. Case Laws where States challenged attempts by Federal government to overextend its Powers are noteworthy.

Tenth Amendment [6], which defines the relationship between Federal and State government, Anti-commandeering doctrine [7], which speaks to Powers reserved for the States, and other Court rulings intended to protect States’ autonomy are also noteworthy, for instance [7][8][9],

a) In the landmark case, Marbury v. Madison (1803), the Court ruled an act of Congress unconstitutional, post which Judicial Review was established where Courts could invalidate Congressional laws found inconsistent with the U.S. Constitution,

b) In New York v. United States (1992), the Supreme Court affirmed States’ implied sovereignty, and that Federal government could not commandeer State legislature to enforce Federal law in violation of the Tenth Amendment, 3)
            i) In McCulloch v. Maryland (1819), implied powers doctrine came into being, be it favourable to the Federal government, or States,

c) In Miranda v. Arizona (1966), Court ruled Miranda rights are Constitutionally protected under Fifth, and Sixth Amendments,

d) In National Federation of Independent Business v. Sebelius (2012), the Court ruled Federal government could not force States to expand Medicaid under the Affordable Care Act by threatening to withhold all Medicaid funding,

e) Twenty-seventh Amendment, Congressional Compensation Act of 1789, which regulates salary of Members of U.S. Congress, was not ratified till 1992,

f) In Gibbons v. Ogden (1824), the Court ruled Commerce Clause granted U.S. Congress Exclusive Power to regulate Interstate Commerce in that States could not establish monopolies.

The intent of citing said Case Laws is to remind the ruling class they are not the only ones, who had attempted to consolidate power so prematurely, and to demonstrate as to the folly in their practice of doing so. In the case of Somalia, one could argue the nation is at a crossroads highly likely heading towards Confederacy; why, one might ask, and how does one reconcile said diverging, if conflicting ideologies?  At first, allow me to remind the reader as to the track that which led us here.

Political Agreement amongst Stakeholders

At the heart of the 2012 Federal Constitution[7], as adopted in 2004, and subsequently endorsed at the 2006 and 2012 Peace & Reconciliation Conferences, was a Political Agreement amongst Somali stakeholders comprising five (5) key elements:

a) Power-sharing model amongst stakeholders,
b) Inclusive, participatory, and consensus-based decision-making political process,
c) Federal system of governance at its three levels,
d) Parliamentary system with a Prime Minister and Council of Ministers in charge of Powers of the Executive Branch, and
d) Democratic elections.

Therein lies the kernel of the matter, for at its current standing, Somalia is neither Federal, democratic, parliamentary, nor had successive Administrations adhered to the requisite provisions of the Political Agreement, and Founding Principles, ergo finds itself at a crossroads. 

Read more: Somalia: Why the Confederacy Debate? Pendulum swings between Confederacy versus Unitary

Syed Ahmed Gashan 
Email: gashan@gmail.com
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References
[1] Notable Federal Member States under the aegis of the FGS are HirShabeelle (HS), GalMudug (GM), and Koonfur Galbeed (KG). 

[2] Jubaland (JL), under the leadership of Ahmed M Islam, alias Ahmed Madoobe initially participated in the unilateral Constitutional Amendments, but later pulled out raising concerns about its adverse implications, political or otherwise. Subsequently, under the orders of President Hasan Sh Mohamoud, militias loyal to the FGS had been airlifted to Ras Kamboni, deep inside JL, to overthrow and arrest Ahmed Madoobe. Banadir District Court, which has no legal authority in JL or in any other FMS, issued his arrest warrant.   

[3] Whilst the Federal Constitution is applicable to all Somali regions including Somaliland with Parliamentary seats, and representatives, Somaliland does not recognise it.

[4] Al-Shabaab has a political ideology with considerable presence in the country, and with control and influence in Southern regions, but neither participates nor is represented in politics.

[5] a) Dual federalism (pre-1930), b) Cooperative federalism (1930s – 1990s), and c) Creative federalism (post 1990s).

[6] Bosnia Herzegovina had a Confederacy system of governance post the collapse of Yugoslavia, in 1992.

[7] The 2012 Federal Constitution is still pending ratification, harmonisation with FMSs Constitutions, and a nation-wide referendum.