Mandatory “Draft Provisional Constitution (DPC)” to 135
Traditional Leaders (TLs)” and 825-member “National Constituent
Assembly (NCA) with the official message that both groups are not allowed to make amendments to the draft document or to reject it. The UN-led Constitution-Making Process for Somalia could be described all but “legitimate, accountable, transparent, participatory, inclusive and most importantly Somali-led” as claimed by the Special Representative of the UN Secretary General (SRSG) and head of the United Nations Political Office for Somalia (UNPOS).
From the beginning, the Constitutional process has been funded, managed and controlled by the IC through United Nations bodies and the International Development Law Organization (IDLO) which implements the Italian funded project for “Supporting the Constitutional Review Process (CRP) in Somalia.” On July 23, UNPOS released a revised version of DPC previously signed by the six (6) signatories of the Roadmaps process in Nairobi, Kenya on June 23, 2012. It issued a new Guide Book explaining the contents of the DPC. Additionally, for surprise reversal of position, the SRSG announced the increase of the number of Members of People’s House of Federal Parliament (FP) from 225 to 275 members.
Two mysterious committees- a Technical Review Committee and a Transitional Federal Government (TFG) Joint Implementation Unit– have the discretionary power to amend continually the DPC while UNPOS has brazenly overruled the proposals for amendments or postponement of DPC debate from the majority of the Somali leaders. The Minister for Constitution, Federalism and Reconciliation, Hon Abdurahman Hosh told the NCA members in clear terms that they should not waste their time studying the already pre-approved mandatory Draft Constitution and they should applaud for the work done as a sign of appreciation. Otherwise NCA members could be labeled as “spoilers.” UNPOS has predetermined that just one-fourth of 825 NCA-member is needed to vote on a loaded question. Even if NCA rejects it, DPC remains the law of the land. Somalia has been subjected to a transitional system of governance and to a Constitution-Making process never experienced in recent history.
The latest version of DPC contains 143 articles and its predictable effect is the “End of Somalia as a country and people” and “not the End of Transition period for permanent system of governance.” The provisions of DPC promote all sorts of problems and political dynamics such as social fragmentation and conflicts, secession or separation, foreign claims over Somali territory, primacy of international laws over Somalia laws, long term foreign military occupation, installation of bogus Federal Government (FG) and protracted stalemate over the formation of Federal Member States (FMSs).
Salient provisions of the DPC
The Guide Book which explains main salient provisions of the DPC outlines the followings:
1) Federalism: DPC prescribes a Federal system of government (Federalism) for Somalia for three reasons:
(a) To accommodate the existing regional governments, specifically Puntland or GalMudug; No mention of Somaliland.
(b) To accommodate the distinct regional needs of the Somali people. This Somali distinction echoes Ethiopia’s strategic perspective towards Somalia.
(c) To implement shared rule (in central government) and self-rule (in regional government).
2. Noted Problems of Federalism in the Guide Book:
(a) The creation of FMSs proved to be very controversial issue during the constitutional conferences. The responsibility for establishing FMSs has been invested in the the House of the People of FP subject to the recommendations from an Independent Commission on Boundaries and Federation.
(b) The allocation and regulations of natural resources, public finance and tax raising powers are still subject to negotiations between FG and non-existing FMSs. In accordance with article 50 (b), DPC requires in anticipation that governmental functions are exercised and taxes are being collected at the level of government where they are most effectively being exercised or raised. The interpretation of this requirement is open for dispute. Also, each FMS has the freedom to formulate its own land policy
(c) Although foreign affairs, national defense, citizenship and immigration, and monetary policy shall be part of the remit of the FG, existing FMSs (Puntland) retain and exercise their powers on the basis of their State Constitutions independently from the FG. Yet, FG must consult at all-time with FMSs on matters related to federalism, security and foreign affairs.
(d) FMSs are exclusively empowered to develop the status, structure and competences of local governments, and any further political and administrative decentralization deemed necessary through their own State Constitutions without reference to FG or DPC.
3) Independent Commissions: DPC creates Independent Commissions, which shall be bodies operating separately from government or political control to handle specific governmental functions.
4) Civil Servants: DPC regulates only FG civil servants.
5) Judicial System: DPC provides three different levels of courts: (1) Constitutional Court, (2) FG Courts, and (3) FMSs Courts. The Constitutional Court and the FG level Courts will be administered by the Judicial Services Commission (JSC). FMSs Courts will be administered by Institutions created by FMSs Constitutions.
6) Peace, Security and Defense: FG is responsible for the guarantee of the peace, security and national sovereignty of the FG. However, each FMS is entitled to establish its own FMS’s police to protect the lives and property of its people alone or in cooperation with the federal police force.
7) Representation: The parliament of each FMS represents its population. Members of the People’s House of FP represent the entire population of the Federated FMSs. Then, the Upper House of FP represents FMSs. These complicated representations for Somalia need separate discussions.
8) Amendments: There are two processes for constitutional amendments. One process is to be followed in the period before the popular referendum on DPC and the other one is to be practiced after popular referendum. In any case, Amendments to the Constitutions will require 2/3 of Upper House of FP which does not exist. This situation prohibits amendments of any type to DPC.
9) Effect of DPC. DPC comes into effect at the conclusion of the NCA 9-days conference in Mogadishu, Somalia.
Implications of the salient provisions of the DPC