Widespread opposition to the document stems from the way it was formulated in secret without public mandate or the input of Somali civil society, intellectuals and constitutional experts.
In due consideration of the widespread opposition to the draft constitution, the international community and the Transitional Federal Government (TFG) should honour the opinions of the concerned Somali stakeholders and desist from its crooked ratification. The 1960 Constitution and the Transitional Federal Charter (TFC) provide sufficient legal basis for the formation of a new national interim authority under the control of credible people's representatives, the Council of Elders and Council of Experts, before August 20, 2012 with the specific tasks of setting up sustainable and durable legal, political and institutional foundations for the Somali State. The admirable role of the international community would be to facilitate a process that celebrates a new trajectory, which completely ruptures with the present approach based on taking advantage of Somalia's misfortune.
There is no justification for the ratification of the draft constitution at this juncture. Besides the controversial Articles on human rights, citizenship, borders, religion, Mogadishu status, the election of president and constitutional amendments, a review of the Articles related to representation, structure and relations between various levels of government, and territory, illustrates further fatal flaws in the draft constitution.
President Sheikh Sharif Ahmed of TFG publically expressed his personal reservation on some Articles of the Draft Constitution. But for self-preservation, he denounced other opponents for rejecting the draft constitution for the same reasons he held.
On May 4, 2012 Sheikh Mohamed Abdi Umal, a well-known Somali Islamic scholar, delivered a powerful speech about the unacceptability of the draft constitution. His critique centered among others on three defects: (1) the secrecy surrounding the constitution-making process and the submission of the draft constitution to the traditional leaders and Constituent Assembly without prior broad based public consultation and scrutiny; (2) exclusion of the Somali Islamic scholars from the drafting and consultation process of the constitution; (3) the lack of opinion of trusted Somali constitutional experts on the text of the draft constitution.
On the same day, President Dr. Abdurahman Mohamed Farole of Puntland State come out forcefully against the draft constitution in a letter he sent to the key actors of the international community- UN, US, UK, AU, and IGAD- in the constitution making process of Somalia. Subsequently Puntland Administration submitted detailed amendments superseding the April draft constitution.
In asking an urgent meeting to be held in Addis Ababa or in Nairobi between the "roadmap stakeholders" renamed "Somali Principals," with the participation of key actors, President Farole cited the following four reasons:
a. The Draft Constitution is not suitable for a war-torn fragmented country like Somalia. It is highly confusing, contradictory and based on a centralized government system.
b. It does not distribute power, resources and competence in service delivery fairly between federal and state institutions.
c. The drafting process was not inclusive, participatory and transparent. There was no wider public consultation. TFG unilaterally appointed members of Independent Federal Constitution Commission (IFCC) and Committee of Experts (CoE).
d. The ability, expertise and representation of the members of the IFCC and CoE are unsatisfactory. The lack of participation of constitutional experts blemished the draft constitution.
e. For self-acquittal, he lashed out against other opponents of the draft constitution for not seeing and reading the April draft constitution he had seen, read and disliked because the latter draft was only in the possession of the six roadmap stakeholders. He expressed his support for the final warning of AU, UN and IGAD for punitive actions against those labeled spoilers. This typifies classical hypocrisies marring the credibility of Somalia's leaders.
In a nutshell, statements a, c, and d summarise the main reasons for the popular objection to the draft constitution with regard to the legitimacy and integrity of the constitutional process and with regard to the substance. These flaws cannot be redressed in a meeting in Addis Ababa or Nairobi.
In separate note, the call of President Farole for a meeting in Addis Ababa or Nairobi shows the level of distrust among Somalis. Some of the guiding principles of Puntland leaders on the restoration of Somali State are: (1) The status of Mogadishu should remain undecided; (2) Regional States (Puntland State) and Federal Government are equals; (3) The Federal Constitution must conform to the Puntland Constitution which is adopted and permanent; (4) Issues of citizenship, land, and natural resource are matters of local responsibilities.
CHAPTER 6 ON REPRESENTATION OF THE PEOPLE
In contrast to Article 11(3) of TFC, the Draft Constitution does not mention the requirement for a national census before undertaking national or local elections or distribution of national resources.
ARTICLE 58 ON INTERNATIONAL NEGOTIATIONS
Despite paragraph 3 of Article 58 states that the federal government shall regard itself as a guardian of the interests of the regional states, paragraph 1 requires consultation with and participation of the regional states on the negotiations in connection with foreign trade, treaties or other major issues of international agreement.
Article (59) authorizes the federal government to pass laws setting a framework and guiding principles for local government. At the same time, Article 56 (g) and Article 68 prescribe that disputes between federal government and regional states should be resolved on the basis of mediation, negotiation and the spirit of cooperation as two neighbors by establishing special committees or boards. Puntland argues for two levels of Government- Federal and State only, while the Draft Constitution prescribes three levels-Federal, State and Local Government.
In accordance with Article 66, the federal government cannot give directives to the Regional States for compliance with the constitutional provisions unless the House of Regional States passes a resolution on the subject.
ARTICLE 69 ON STATE BOUNDARIES AND ARTICLE 70 ON THE CREATION OF A NEW STATE
Article 69 (3) establishes that state boundaries shall be based on the boundaries of the administrative regions as they existed mainly before the 1990 civil war. In accordance with Article 69 (3) and Article 11 (2) of the TFC, Puntland loses the legitimacy of a Regional State. Theoretically, Puntland comprises 5 regions but practically it has excluded part of Mudug region like South Galkaio, Hobyo and Harardere districts while it has annexed Buuhodle district which belongs to Togdheer region.
For the creation of new states, compliance with four conditions is required:
(1) A minimum of two regions joining together with their free will. This condition presumes the existence of a mechanism for the determination of the free will of the people before undertaking the creation of new state. In addition, regions can remain as regions not mentioned in the Constitution.
(2) The new state is not against the national interest; this national interest is not defined.
(3) The new state shall not jeopardize the national federal unity of the Somali republic.
(4) The new state must have the capacity to discharge the functions and responsibilities of a State within the federation, including the protection of the rights of all citizens with the state economic self-sufficiency and the delivery of basic services.
These conditions are stumbling block for the imposed creation of new regional states. This is a vicious circle. Thus, the persistence of confusion and bickering is assured.
ARTICLE 71 ON ADMISSION OF THE NEW MEMEBRS TO THE REPUBLIC
Article 71, like Article 172 reflects the presumption that the territory of the Federal Republic of Somalia falls between Mogadishu and Galkaio, while Puntland, Azania, Bay-Bakol-Lower Shabelle (South West State), and Somaliland will be additions to the federation in due course. As paragraph 1 of this Article makes clear, Federal Somalia (Central-Mogadishu) will negotiate with other regions on their conditions and terms for joining the federation.
THE NATURE OF THE PRESIDENCY
Article 94 paragraph 1 says that in order to strengthen the unity of the nation the two houses of parliament shall endeavor to ensure that the office of the president is rotated between different groups in society.
OFFICE OF THE ATTORNEY GENERAL
As per Article 128, only the House of Regional States selects one of the candidates proposed by the Judiciary Service Council as Attorney General and the president shall appoint that person without reference to parliament or to Council of Ministers.
REGIONAL STATE INSTITUTIONS
Under Article 140, Regional State Constitutions will establish the legislative and executive bodies of the governments of the regional states. The state constitutions developed after the adoption of the draft constitution will be referred to the Constitutional Court for compatibility, while the federal constitution must conform to the existing regional constitution of Puntland. No Federal Government can exist and function before all regional states with their constitutions, parliaments and council of ministers are established and the House of the Regional States is in place.
The outcome of the constitutional process which was murky and outside the public radar from the beginning is unlikely to foster peace, stability, and development in Somalia. Given the immense complications for implementing the federal system in Somalia, one inevitable scenario could be that Somalis abandon the formation of national government representing Somalia and allow local states to represent their people at all levels. However, a National Unitary Government with decentralized functional integrity and reliable checks and balances is the best option for all Somalis. The past should be a lesson for a bright future.
Somalia analyst Mohamud M Uluso