Draft Constitution challenges Somalia's will for nationhood
Mohamud M Uluso
2012-05-16, Issue <
http://www.pambazuka.org/en/issue/584> 584
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The proposed constitution serves the interests of the Transitional Federal
Government and its international backers, not the people of Somalia.
The debate on the constitution-making process in Somalia shifted to a
perilous level after the international community demanded that the
Intergovernmental Authority on Development (IGAD) submit the list of the
critics - labeled "spoilers" of the peace process of Somalia - for referral
to the International Criminal Court and to the UN Security Council for
incontestable harsh punishment. Compulsory acceptance or legitimate
rejection with severe consequences of a conflict-ridden constitution is an
awful predicament that challenges the conscience of many Somali citizens.
However, an examination of just a few articles of the publicly available
version of the Draft Constitution, like on the status of Mogadishu, on the
general provisions, on the election of the president in a parliamentary
system, and on the original language of the constitution as well as the
analysis of the political dynamics affecting the constitution-making
process, highlight sufficiently why the public strongly opposes the Draft
Constitution. What is more troubling is that the final draft of the
constitution is secret and not subject to public consultation before its
approval. The Draft Constitution challenges Somalia's will for nationhood.
STATUS OF MOGADISHU
Article 8 stipulates that Mogadishu is the capital city of the Somali
Republic, while article 67 lists three options for the status of the capital
in the federal system. The options are:
(1) The capital is located within a Regional State which has the power to
pass, in consultation with federal government, a law governing the status of
Mogadishu;
(2) Mogadishu as a Federal Capital District: The Federal Government passes a
special law. The Citizens of Mogadishu will not send delegates to the House
of Regional States. The Federal Government will play the dual roles of
Federal and Regional governments;
(3) Federal capital as itself a Regional State. This option is unclear.
As of today May 8, 2012, the option and its formulation included in the
final Draft of the Constitution is a mystery. Because of the
impracticability of the concept of federalism in Somalia, the debate over
the status of Mogadishu will continue sine die.
GENERAL PROVISIONS OF CHAPTER 16
Article 172 prohibits all constitutional amendments within the first seven
years after the constitution comes into force. Only the amendment intended
to facilitate the participation of either or both Puntland and Somaliland as
part of the Somali Republic is permissible. It is important to note the
discrepancy between the transitional seven years in the Draft Constitution
and the transitional four years in the Garowe Principles.
Article 173 establishes that after seven years parliament can amend the
constitution in accordance with the recommendations of a parliamentary
review commission. This is similar to the lax amendment procedure of the
Transitional Federal Charter (TFC). Article 174 mandates that the Draft
Constitution shall come into effect after 90 days of its approval through
unspecified modalities.
As of today May 8, 2012, Schedule 1 and Annex X of the Draft Constitution
are blank references to be filled or to be developed (TDB). At the same
time, Articles 175, 176, and 179 refer to that blank schedule 1 and Annex X.
Article 178 reiterates the right of voters to express their views in the
case of hypothetical referendum rather than addressing the required
referendum as per article 11 (3) of the TFC. In the next ten years, the
Draft Constitution will not be subject to popular referendum.
SCHEDULE 3 -ELECTION OF PRESIDENT IN PARLIAMENT SYSTEM
Any presidential candidate must be nominated in writing by at least 10
members of the House of the People and must show support of at least one
regional state delegation to the House of Regional States. Then, the members
of the Regional States are obligated to vote individuals rather than as a
delegation. Is this provision feasible in the presidential election in
August 2012 and afterwards?
During the presidential election, the presence of only 70% of the members of
each house is required. In other cases, there is no required quorum but
implicitly it could be less than 50%. This constitutional provision
encourages irresponsible political behaviour.
ORIGINAL LANGUAGE OF CONSTITUTION
What is more astonishing is the absence of an article which establishes the
original language of the Draft Constitution among the four languages:
Somali, May, Arabic and English. Italian fell out of fashion.
POLITICAL DYNAMICS AFFECTING THE CONSTITUTION MAKING PROCESS
On May 4, 2012, the State Department of the United States of America issued
a press release in support of the threats made by friends of Somalia chaired
by the United Kingdom Ambassador to Somalia, and by the AU, UN and IGAD in
their joint letter against anyone including members of parliament opposing
the Draft Constitution. This act pays no attention to the following
well-reasoned conclusion and recommendation made in a paper issued by the
Horn of Africa Steering Committee of Woodrow Wilson International Center for
Scholars under the title, " Pathways to peace in the Horn of Africa: What
role for the United States?"
"The US government must recognize that its long term interests are best
promoted not by building relationships with particular regimes and/or
political parties but by supporting the legitimate rights and aspirations of
the peoples of the Horn."[1]
As expected, the President of the Transitional Federal Government (TFG),
Sheikh Sharif has ruled out rejection of the Draft Constitution even if the
latter is against the interests, sovereignty and territorial integrity of
Somalia. Eng. Abdirahman Omar Yarisow spokesman of the PM Prof. Abdiweli M
Ali made a similar threat to the critics of the Draft Constitution labelling
them as "spoilers."[2] The Minister of Internal affairs and Security
Abdisamad Moallim Mohamud has banned holding political meetings in Mogadishu
without his ministry's permission. The unalienable constitutional rights of
free speech, freedom of association and assembly of the citizens of the
"South Central Somalia" have been abolished.
The concerned citizens were shocked not by the actions of the leaders of the
TFG but by the anti-democratic stances of the international Community. There
is general consensus that the top TFG leaders are determined to remain in
their plum positions for the next seven years by complying with the
instructions of Ethiopia, UN Special Representative and AMISOM Commander
without concern to the aspirations and long term interests of their people
and country.
The international community is fully aware of the fact that the dismal
cooperation and smear campaigns going on between the top three TFG leaders
have crippled their effectiveness, legitimacy and credibility. The Somali
Website Wardheernews published two articles with pseudonym names: (1) 'PM
Abdiweli's Achievements'; (2) 'Is President Sheikh Sharif competent enough
to lead'? On his part, Inj. Yarisow published a letter reported in the
AMISOM Daily Media Monitoring under the title: 'Somalia at Cross Roads: Is
this time any different?' The aim is to create better image for PM
Abdiweli's TFG in comparison to President Sheikh Sharif's TFG.
Also, the call by the UN expert on human rights for the international
community and the TFG to set up a legitimate justice system [3] discredits
the propaganda claims of progress in Mogadishu. In support of the UN
expert's note of the despicable injustice system in Mogadishu, the
Government website reported recently that the Attorney General has issued an
arrest warrant for the President of the Supreme Court on charges of
corruption and imprisonment of innocent individuals or for the release of
accused criminals from prisons without court process. The appalling scale of
the injustices witnessed by the UN expert is an indictment of the TFG and
the international community. It is said loudly that "where there is no
justice there will be no peace."
GENERAL OBSERVATIONS
The Traditional leaders and the illegally instituted Constituent Assembly
have called for the approval of an undeveloped and yet to be published
Constitution as of today May 8, 2012. This is the most egregious political
attack perpetrated against Somalia's conscience and patriotism. Probably,
three international bodies are aware of the secret Constitution: (1) the
United Nations (UN) represented by the United Nations Development Program
(UNDP) which manages the constitution-making process and the United Nations
Political Office for Somalia (UNPOS); (2) the National Democratic Institute
which works with UN; (3) The International Development Law Organization
(IDLA) which implements the project called "supporting the constitutional
Review process (CRP) in Somalia" financed by the Italian Government. The
Independent Federal Constitution Commission and the Committee of Experts are
temporary paid teams of the three international bodies.
In realization of Ethiopia's political and security strategy towards
Somalia, Somalia will be embroiled in chaos and dysfunctional governance
arising from the Draft Constitution in the next seven years in which
Somaliland and Puntland will remain separate entities. The Draft
Constitution smashes Somalia rather than repairs it. Somalia deserves a
better alternative.
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Received on Wed May 16 2012 - 17:49:52 EDT
