By Bashir M. Sheikh Ali [1]
Although I have previously argued that Parliament acted within its constitutional authority in repealing Article 54 [2], this memo presents the strongest arguments available to both sides of the question, focusing on the scope of amendment power, the negotiation requirement, and the role of federal member state (“FMS”) consent. Critics have made much of the timing of the amendments.
I. The central question
The constitutional amendments to Somalia’s Provisional Constitution (“PC”), adopted in stages between March 2024 and March 2026, repeal Article 54 of the original text and replace it with four power allocation schedules (Jadwalka 2A through 2D) assigning exclusive federal powers, shared powers, exclusive state powers, and exclusive local government powers. Article 54, as adopted in 2012, provided that the allocation of powers and resources would be negotiated and agreed upon by the Federal Government (“FGS”) and the FMSs, with only four domains (foreign affairs, national defense, citizenship and immigration, and monetary policy) reserved to the center.
This memo examines whether the repeal of Article 54 was constitutionally valid, focusing on two contested issues: whether Parliament had the authority to do what it did, and whether the process that produced the power allocation schedules satisfied Article 54’s negotiation and agreement requirement. The memo does not resolve either question. It presents the strongest arguments on each side so that the reader may assess them independently.
II. The constitutional text
Article 54 of the 2012 the PC reads in its entirety:
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 Defense; (C) Citizenship and Immigration; (D) Monetary Policy, which shall be within the powers and responsibilities of the federal government.
The provision uses mandatory language: the allocation “shall be negotiated and agreed upon.” It identifies the parties: “the Federal Government and the Federal Member States” and specifies that the negotiation obligation applies to all power allocations except four enumerated federal domains. And it acknowledges that the states were still being formed, implying the negotiation would occur as the federation matured, not at the moment of constitutional adoption.
The amendment power under the PC is governed by Chapter 15. Article 132(1) shields only “the Founding Principles mentioned in Chapter 1” from amendment. Article 54 sits in Chapter 5 and is therefore not textually protected. Article 3(3) of Chapter 1, which is protected, states: “The Federal Republic of Somalia is founded upon the fundamental principles of power sharing in a federal system.” Article 142(2), a transitional provision, states: “Existing Federal Member States must be consulted in the decision-making process regarding the federal system, and security arrangements.”
III. The political origin of the power schedules
The power allocation schedules trace to a political agreement reached at the National Consultative Council (NCC) in late December 2022. The NCC is a de facto platform for executive leaders at the federal and state levels. It has no constitutional basis, is not established by any article of the Provisional Constitution or by any law enacted by Parliament, and its decisions have no binding legal force. The Independent Constitutional Review and Implementation Commission (ICRIC), the body responsible for drafting the constitutional amendments, confirmed this characterization in its own explanatory report, describing NCC agreements as political decisions that are neither legislation nor international agreements and that lack the force of law.
Puntland, the oldest existing FMS, did not consent to the December 2022 agreements. Its president withdrew from the NCC, citing a lack of inclusivity and transparency and characterizing the power-sharing arrangements as skewed. Puntland has not participated in any NCC meeting since January 2023. The ICRIC translated the NCC political agreements into constitutional language and submitted its proposed amendments to the Parliamentary Oversight Committee, which forwarded them to both Houses under the procedures set out in Articles 133, 134, and 136 of the Provisional Constitution. Chapter 5, with the power allocation schedules replacing Article 54, was subsequently adopted by Parliament.
IV. The case that the repeal was constitutionally sufficient
The amendment power under the PC is governed by Article 132(1), which shields only the Founding Principles in Chapter 1 from amendment. Article 54 sits in Chapter 5 and is therefore within Parliament’s reach. Parliament had the formal authority to repeal it, provided it met the two-thirds threshold and procedural requirements. The Upper House, constitutionally designated by Article 71 as the chamber that “represents the Federal Member States,” voted for the amendments by the required supermajority. If the states’ constitutional representatives approved the amendments, the states can be said to have consented through the institution designed for that purpose. A particular state executive’s objection does not override the vote of the parliamentary chamber. The fact that Puntland’s senators may have voted differently from their state’s executive leadership reflects a tension within state representation, not a deficiency in the constitutional process.
The PC was, by its own terms, an incomplete document awaiting completion. The transitional provisions in Chapter 15 were specifically designed to facilitate constitutional development. Completing the power allocation by enacting schedules is precisely the kind of development the framers contemplated. The NCC agreements, while not legally binding, provided a political foundation: a majority of FMSs endorsed the framework. The government made good-faith efforts to include Puntland, dispatching three state presidents to Garowe. Puntland’s withdrawal was a political choice, not a procedural exclusion. A single state’s refusal to participate cannot constitute a veto over the entire federation. Article 54’s parenthetical, “pending the formation of FMSs,” suggests it was a provisional arrangement awaiting formalization, not a permanent constitutional guarantee. Once the federation had matured sufficiently, the allocation could be formalized through constitutional text, which is what the schedules accomplish.
The process that produced the schedules was not improvised. The ICRIC conducted comparative research across ninety-five constitutions, held two rounds of consultations with federal member state governments, and submitted its proposals through the procedures set out in Articles 133, 134, and 136. Parliament adopted Chapters 1 through 4 by the same process, establishing a working precedent that the constitutional bodies themselves treated as sufficient. If Puntland’s absence were treated as fatal, any single state could prevent the PC from ever being completed, a result the framers could not have intended and the constitutional text does not require.
V. The case that the repeal was constitutionally deficient
Article 54 was not merely a substantive provision about which powers belong where. It was a procedural commitment about how the allocation would be produced. It mandated that the allocation “shall be negotiated and agreed upon by the Federal Government and the Federal Member States.” When Parliament repeals the process requirement and simultaneously enacts the very content that was supposed to emerge from that process, it uses one constitutional power (amendment) to extinguish another constitutional requirement (negotiation) at the precise moment the second would have constrained the first. The question is not whether Parliament can amend Article 54 in the abstract, but whether it can use the amendment power to bypass an unfulfilled constitutional obligation and substitute its own judgment for the negotiated agreement the constitution demanded. To put the point differently: Parliament did not merely amend a constitutional provision. It used the amendment power to resolve the very question that the amended provision said must be resolved by a different method. The amendment power and the negotiation requirement collide, and the question is whether the amendment power can consume the negotiation requirement without first fulfilling it.
Article 3(3) is protected from amendment and provides that the Republic is founded upon “the fundamental principles of power sharing in a federal system.” Power sharing implies parties who share. If one party determines the allocation unilaterally, the sharing is nominal. The schedules may distribute powers across levels of government, but if the distribution was not the product of agreement between those levels, it is an assignment, not a sharing. Whether the resulting allocation satisfies Article 3(3) is a question that does not answer itself, and it is one the Constitutional Court would have jurisdiction to decide.
Article 142(2) required that existing states “must be consulted in the decision-making process regarding the federal system.” Puntland was not merely unconsulted; it affirmatively withdrew because it objected to the terms being proposed. If Parliament can remove this consultation guarantee and simultaneously produce the constitutional content the guarantee was meant to protect, then the transitional safeguards were never safeguards at all. They were aspirational text that the first parliament with a two-thirds majority could discard at the moment of its choosing.
Any argument that the Upper House consented to the amendments is weakened by a critical distinction. Article 54 did not say the allocation shall be approved by the Upper House. It said the allocation shall be “negotiated and agreed upon by the Federal Government and the Federal Member States.” The framers chose the language of direct intergovernmental negotiation, not parliamentary approval. A senator voting in the Upper House is not a state government consenting at a negotiating table. Article 54 contemplated the latter.
The NCC “agreement” cannot cure the deficiency. The NCC is not a constitutional body. It has no legal standing. Its decisions are not binding. The ICRIC’s own explanatory report confirms as much, characterizing the NCC agreements as political decisions lacking the force of law. Even if all states had agreed at the NCC, the constitutional question of whether a political forum with no legal mandate can satisfy Article 54’s requirement would remain open. But the more fundamental problem is that all states did not agree. Article 54 uses a collective formulation: “the Federal Government and the Federal Member States.” It does not say “the Federal Government and a majority of the Federal Member States.” On a natural reading, the negotiation requirement applies to all constituent parties of the federation. Puntland’s withdrawal was not a refusal to negotiate; it was a refusal to accept terms it considered skewed, which is precisely the exercise of the bargaining position Article 54 was designed to protect. The government dispatched delegations to Garowe, but a diplomatic visit is not a negotiation, and no agreement resulted from it. The parenthetical “pending the formation of Federal Member States” does not support the argument that Article 54 was temporary. It defers the obligation until the states exist and can speak for themselves. The fact that states now exist is the condition that activates the obligation, not the condition that renders it obsolete.
Two features of the amended design amplify the significance of the consent question. The amendments constitutionalize a third tier of local government with its own exclusive power schedule, creating a constitutional layer between the states and their own local governance structures that the FGS can now reach past the states to engage. They also establish a single national election commission with jurisdiction over state and local elections, centralizing the most sensitive political function in any federation. Both were accomplished through the same contested process, and both are among the matters Article 54 contemplated would be negotiated. Their inclusion in the schedules without state consent compounds, rather than merely accompanies, the central constitutional question.
VI. What is at stake
The distinction between these two readings is not academic. If the amendments are constitutionally sufficient, the federation has a completed power allocation, a unified electoral framework, and a constitutional basis for proceeding to direct elections. The political objections of dissenting states are political objections, to be resolved through political processes, and the constitutional order is settled.
If the amendments are constitutionally deficient, the power allocation lacks the consent of at least one constituent unit, the schedules rest on a contested legal foundation, and elections conducted under the new framework carry that contestation. The deficiency may be curable prospectively, but the current text would not represent the completed federal settlement its architects claim. It would represent a framework imposed by a parliamentary majority on a federation whose constituent parts have not all agreed to its terms.
This memo does not resolve the tension. That is deliberate. The tension between Parliament’s formal amendment power and the substantive requirements of federal consent is genuine. It is the central unresolved question of Somalia’s constitutional transition. What cannot reasonably be disputed is that the question exists, that it is serious, and that proceeding as though it does not exist carries risks that the architects of the current design have chosen not to acknowledge. The federation deserves an answer. The question is whether its political leadership will seek one, or continue to act as though the answer is self-evident.
Bashir M. Sheikh Ali, J.D., Ph.D
Email: bsali@yahoo.com
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Notes and References:
[1] Bashir M. Sheikh Ali, J.D., Ph.D., is a Somali American lawyer based in Nairobi. The views expressed in this analysis are his own and do not reflect those of any organization with which he may be affiliated.
[2] https://hornobserver.com/articles/3602/Somalia-Article-54-and-the-Federal-Settlement-Constitutional-Authority-and-the-Politics-of-Completion