By Isha Qarsoon

This is the third of three analytical essays examining the Agreement in the Field of Hydrocarbons concluded between the Government of the Republic of Turkey and the Federal Government of the Federal Republic of Somalia, signed in Istanbul on 7 March 2024 (the “Agreement”). The first essay examined what operational and regulatory control Somalia retains after Turkey exercises what the Agreement permits. The second essay measured the Agreement’s commercial terms against Somalia’s own legal and commercial framework and international standards. This essay examines whether the Federal Government had the constitutional authority to enter this commitment at all.

The constitutional framework applicable to this question is the Provisional Constitution of the Federal Republic of Somalia (“PC”) as it stood on 7 March 2024. Constitutional validity of an executive act is assessed against the constitutional framework in force when the act was taken. Subsequent amendments do not retroactively authorize an act that was constitutionally deficient when taken. The authorization must precede the commitment.

Three independent constitutional defects are identified below. Each is sufficient on its own to raise serious questions about the Agreement’s validity. Together they describe a transaction the Federal Government had no constitutional authority to conclude in the form it did.

First Defect: The Minister Had No Authority to Sign

Article 90(q) of the PC assigns treaty-making authority to the President of the Federal Republic of Somalia. The provision requires the President to sign international treaties proposed by the Council of Ministers and approved by the House of the People of the Federal Parliament.[1] The sequence is fixed: Council of Ministers proposal, House of the People approval, then presidential signature. Each step is a precondition to the next.

The Agreement was signed by Abdirizak Omar Mohamed, then Minister of Petroleum and Mineral Resources, who was subsequently removed from office. The Agreement does not bear the President’s signature. There is no public record of a Council of Ministers proposal preceding the signing. There is no public record of House of the People approval preceding the signing. The Federal Government has provided no public account of the procedural steps taken to satisfy Article 90(q) before the Minister signed in Istanbul.

Article 12.1 of the Agreement conditions entry into force on completion of each party’s internal legal procedures. As of 16 April 2025, when President Erdogan transmitted the Agreement to the Turkish Grand National Assembly for parliamentary approval, Turkey had not completed its own procedures. The Agreement had therefore not entered into force on either side as of that date. Whether Somalia completed its own procedures, and through what process, the Federal Government has not publicly stated.

A defender may argue that the Minister signed subject to subsequent ratification, and that Article 12.1 preserves constitutional compliance by deferring entry into force. That argument inverts the constitutional order. Article 90(q) requires Council of Ministers proposal and House of the People approval before the President signs, not after a minister signs. Parliamentary approval after ministerial signature ratifies an unauthorized act. It does not cure the authorization defect that preceded it.

Second Defect: The Agreement Violated Article 44

Article 44 of the PC states that the allocation of the natural resources of the Federal Republic of Somalia shall be negotiated by, and agreed upon, by the Federal Government and the Federal Member States (FMSs) in accordance with the Constitution.[2] The language is mandatory. The parties to the negotiation are specified: the Federal Government and the FMSs. Agreement between those parties is required. Article 44 does not authorize the Federal Government to allocate resources on the states’ behalf or subject to subsequent revenue sharing. It requires the allocation itself to be the product of intergovernmental negotiation and agreement.

The Agreement allocates Somalia’s entire petroleum estate, covering all onshore and offshore blocks across the national territory including territory within FMS boundaries, to the Turkish Designated Entity under Article 4.1. No FMS was party to the Agreement. No FMS signed it. No FMS has publicly stated that it participated in the negotiations or consented to the terms. The Federal Government negotiated and signed an agreement disposing of resources the PC said could not be disposed of without FMS agreement.

The Federal Government will argue that foreign affairs is an exclusive federal competence under Article 54(A) of the PC, and that a bilateral petroleum agreement falls within that competence. That argument does not defeat the Article 44 scope. Article 54(A) is a general allocation of foreign affairs authority. Article 44 is a specific provision that governs natural resource allocation and imposes a mandatory intergovernmental requirement that operates independently of the foreign affairs power. Specific provisions control over general ones. Article 54 of the PC reinforces this conclusion independently. It provides that the allocation of powers and resources shall be negotiated and agreed upon by the Federal Government and the FMSs, with only four domains reserved exclusively to the federal government: Foreign Affairs, National Defense, Citizenship and Immigration, and Monetary Policy.[6] Natural resources are not among the four excluded domains. Article 54’s negotiation requirement applies to resource allocation regardless of the form the allocating act takes.

The Foreign Affairs exclusion in Article 54 governs the conduct of foreign relations as a governmental function. It does not exempt from the negotiation requirement any act whose substance is the disposition of resources the constitution expressly subjects to intergovernmental agreement. The Federal Government had authority to conduct foreign relations. It did not have authority to use that channel to dispose of natural resources without satisfying the independent constraints of Articles 44 and 54.

There is no scenario in which the FMSs would have agreed to the terms of this Agreement. An agreement that grants a foreign entity exclusive rights over an entire petroleum estate, waives all bonuses and fees, caps royalty at a discretionary five percent, sets cost recovery at ninety percent, and eliminates every mechanism through which the host state captures value from its own resources is not an agreement any state government acting in its constituents’ interests would endorse. The implausibility of FMS consent to these specific terms confirms that no genuine negotiation with the states occurred. What Articles 44 and 54 required did not happen.

Third Defect: The Agreement Violated Article 53

Article 53 of the PC imposes three mandatory obligations on the Federal Government in the conduct of international negotiations. All three were violated.

Article 53(1) requires the Federal Government to consult the FMSs on negotiations relating to treaties or other major issues related to international agreements.[3] There is no public record of any FMS consultation before the Agreement was signed. A petroleum agreement covering Somalia’s entire territorial estate and conveying exclusive rights over all petroleum blocks to a foreign state entity is a major issue related to an international agreement. The consultation obligation was mandatory. It was not discharged.

Article 53(2) requires that where negotiations particularly affect FMS interests, the negotiating delegation shall be supplemented by representatives of FMS governments.[4] An agreement covering territory within FMSs, allocating resources Articles 44 and 54 reserved to joint negotiation, and binding the entire national petroleum estate to a single foreign counterparty particularly affects FMS interests. The obligation to supplement the delegation was triggered. The Agreement was negotiated and signed by a single federal minister. No FMS representative participated.

Article 53(3) requires that in conducting negotiations, the Federal Government shall regard itself as the guardian of the interests of the FMSs and must act accordingly.[5] That obligation is substantive, not merely procedural. The terms of this Agreement, as documented in the companion essays, are structurally adverse to Somalia’s interests at every commercial and operational provision. They are not the terms a guardian extracts for its ward.

A Further Consequence: The PSA Problem

The constitutional defects identified above carry a further consequence this essay flags but does not fully develop. Any PSA concluded under this Agreement will operate within a commercial architecture the Agreement has already fixed. That architecture conflicts with the mandatory PSA requirements of Somalia’s Petroleum Law at multiple points. The Agreement’s supremacy clause under Article 12.3 and its stabilization provision under Article 8.3 prevent Somalia from correcting that conflict through legislation or PSA negotiation. If the Agreement was not properly ratified by an informed Parliament, an executive act is claiming supremacy over a legislative one. That is a constitutional hierarchy problem, not a statutory interpretation question, and it warrants separate treatment. A subsequent analysis will address it directly.

The 2026 Constitutional Amendments Do Not Cure These Defects

The 2026 amendments assigned natural resource revenue exclusively to the federal government under Schedule 2(A) item 26 and confirmed bilateral agreements as an exclusive federal power under Schedule 2(A) item 5. A defender will argue the Federal Government had full constitutional authority under the amended framework.

That argument fails on timing. The Agreement was signed on 7 March 2024. The amendments were adopted in 2026. An act taken in 2024 is assessed against the law in force in 2024. The PC’s Articles 44 and 54 were in force on 7 March 2024. Their requirements were not satisfied. A constitutional amendment adopted two years later cannot retroactively supply the authority that was absent at the moment of signing.

The amended constitution also does not present a clean resolution. Amended Article 44(3) commits to equitable distribution of natural resource revenue across the Federal Government, FMSs, and local governments. Schedule 2(A) item 26 assigns that revenue exclusively to the federal government. These provisions are irreconcilable. The Federal Government committed Somalia’s resources to Turkey while the constitution it subsequently enacted cannot itself resolve who among Somali governmental tiers is entitled to what.

The validity of the 2026 amendments is itself contested. The PC’s Articles 44 and 54 required natural resource allocation to be negotiated and agreed between the Federal Government and the FMSs. Those requirements were removed through a constitutional amendment process that bypassed the intergovernmental agreement the provisions were designed to protect. Whether that amendment process was itself constitutionally valid is an unresolved question. An agreement that was constitutionally deficient in 2024 cannot be validated by a 2026 amendment whose own validity is contested.

Turkey’s Constructive Knowledge

Article 7.1 of the Agreement records each party’s warranty that execution and performance is within its powers. The Federal Government warranted constitutional authority it did not possess under Articles 90(q), 44, 53 and 54 of the PC. That warranty was false when made.

Turkey is not an innocent party. Turkey’s parliamentary justification document describes Somalia’s offshore areas as holding an oil reserve potential of thirty billion barrels and frames the Agreement explicitly as an instrument of Turkey’s Africa Opening Strategy. Turkey subjected the Agreement to its own parliamentary ratification under Article 90 of the Turkish Constitution. A party that treats its own constitutional requirements as mandatory cannot claim ignorance of the constitutional requirements applicable to the other side. Somalia is a federal state. Its PC is a public document. Articles 44’s and 54’s negotiation requirements are not obscure. Turkey’s constructive knowledge of Somalia’s constitutional constraints bears directly on whether Turkey can invoke the Agreement’s protections in good faith.

What the Federal Government Must Answer

The Federal Government has provided no public account of the following: whether the Council of Ministers proposed the Agreement before the Minister signed; whether the House of the People approved the Agreement, and if so when and on what terms it was presented; whether FMS governments were consulted before signing as PC Article 53(1) required; whether FMS representatives participated in the negotiating delegation as PC Article 53(2) required; and whether Somalia has notified Turkey of completion of its internal legal procedures under Article 12.1 of the Agreement.

These are the constitutional conditions under which Somalia’s international commitments acquire legal force. The Agreement covers Somalia’s entire petroleum estate. Its terms, as the companion essays document, are structured to deliver value to Turkey and compress Somalia’s returns to a fraction of what its own legal and commercial framework required. The Federal Government owes the Somali people and the FMSs a transparent account of how this commitment was made, by whose authority, and through what process. Until that account is provided, the Agreement’s constitutional validity remains an open and serious question.

Isha Qarsoon
Email:Ishaqarsoon1@gmail.com
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Isha Qarsoon is a platform dedicated to addressing critical issues pertaining to good governance, corruption, and social challenges in Somalia.  
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Related articles:
Facts & Figures: Who Really Controls Somalia’s Oil and Gas? Part I   By Isha Q. 
Somalia’s Turkey Hydrocarbons Agreement: How Somalia Gave Away Its Oil and Gas Fields- Part II By Isha Qarsoon
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Endnotes

[1]  Article 90(q) of the Provisional Constitution states that the powers and responsibilities of the President of the Federal Republic include the power to “Sign international treaties proposed by the Council of Ministers and approved by the House of the People of the Federal Parliament.”

[2]  Article 44 of the Provisional Constitution states: The allocation of the natural resources of the Federal Republic of Somalia shall be negotiated by, and agreed upon, by the Federal Government and the Federal Member States in accordance with this Constitution.

[3]  Article 53(1) of the Provisional Constitution states: In the spirit of inter-governmental cooperation the Federal Government shall consult the Federal Member States on negotiations relating to foreign aid, trade, treaties, or other major issues related to international agreements.

[4]  Article 53(2) of the Provisional Constitution states: Where negotiations particularly affect Federal Member State interests, the negotiating delegation of the Federal Government shall be supplemented by representatives of the Federal Member States governments.

[5]  Article 53(3) of the Provisional Constitution states: In conducting negotiations, the Federal Government shall regard itself as the guardian of the interests of the Federal Member States, and must act accordingly.

[6]  Article 54 of the Provisional Constitution states: 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.