July 1, 2012 ·24 Comments
BY MOHAMED M. ULUSO
On June 22, 2012 the Somali Roadmap (the process for ending the Transition) Signatories (SRS)-(the gang of six)  signed documents prepared by the Office of the United Nations Political Office for Somalia (UNPOS). The documents, available in this link: Documents signed in Nairobi Kenya on June 22, 2012, are (1) Somali Transitional Government Decree(Decree), (2) Protocol establishing Somali National Constituent Assembly(NCA), (3) Protocol establishing Somali New Federal Parliament (SFP), (4) Protocol Establishing the Technical Selection Committee (TSC), (5) Protocol Establishing the Signatories Technical Facilitation Committee (STFC), (6) Draft Provisional Federal Constitution (DPFC) which entered into force on June 22, 2012. These documents except the DPFC are written in English. Even the DPFC is evidently translated from English. UNPOS throttles Somalia.
The provisions of the Decree include amendments to articles of the Transitional Federal Charter (TFC), the dissolution of the Committee of Experts (CoE) and the Independent Federal Constitution Commission (IFCC), the adoption of protocols establishing TSC, STF, NCA, the establishment and dissolution of NCA after voting on the DPFC, the dissolution and transfer of power from the Transitional Federal Government/Institutions (TFG/TFIs) to SRSG and SRS as the authority responsible for the transition, and finally the request to UN to assume the responsibilities of supervising the transition process, the new parliament and the review process of the provisional constitution during the new parliament term. Paradoxically, the Decree mirrors, the October 1991 Charter of the Supreme Revolutionary Council (SRC) led by Gen Mohamed Siad Barre. The Charter dissolved the Parliament, the Supreme Court and suspended the Constitution, and enacted the transfer of power to SRC.
After the Kampala Accord and the Roadmap Agreement, the TFIs ceased to function and operate under the TFC as national acceptable Institutions by the International Community. Thus, TFI leaders- freed from the local acrimonies, made accountable to UNPOS, IGAD and AMISOM and ordered to stop public squabbles among themselves- concentrated their attention on their personal affairs, interests and ways to secure the favor, support and protection from SRSG and from foreign leaders whose forces are in the country-Kenya, Djibouti, Burundi, Ethiopia, and Uganda. In Somalia, the source of political power, legitimacy and financial support originates from the International Community and not from the Citizens of Somalia.
Protocols of STFC and NCA
The STFC whose members are unknown except Minister A. Hosh took over the role of IFCC after the Addis Ababa SRS Consultative Meeting in May 21-23 2012 and prepared the signed Draft Constitution. It is also responsible for the adoption and publication process of the text. Last but not least, its work will continue in the next four years. The Committee’s Chairman, Mr. A. Hosh will chair the NCA proceedings and will appoint other Chairs.
The protocol establishing the NCA contains incompatible directives. First, it establishes that the Traditional Leaders (TLs) will select members of NCA and SFP in consultation with their clans and communities. Second, it says that TLs have to select those members from among persons whom the TSC vetted against required criteria. These are incompatible directives.
STFC protocol says that STFC members should not have personal political ambitions and not currently serving the TFG bodies. But Minister A. Hosh, chairs STFC and manages the proceedings of the NCA.
Finally, it is worth noting that the plenary meetings of NCA require the presence of 450 members out of 825 members and decisions shall be taken at 50 % plus 1 of present members. This means that only 226 members of NCA are sufficient to approve the DPFC.
NCA will vote on the following question in order to approve the DPFC:
“Should this draft provisional constitution be provisionally adopted to provide for a better Somalia, help reconstruct our country, and set us on the right path and lasting peace pending final adoption at the referendum?”
The sugarcoated words in the question are “provisional constitution”, “provisionally adopted”, “pending final adoption”- (probably after many years) and “a better Somalia”. The question masks the phoniness of the constitution and presumes certain level of inattentiveness and weariness of the public that will put pressure on NCA members for nod. But many could see and learn the kind of subterfuge employed.
Absence of political determination for national unity and government
The DPFC is not drafted in due consideration of Somalia’s culture, history, aspirations, and objective situation. For example, more than 300 Somali civil society gathered in Istanbul, Turkey recommended a national dialogue over federalism to determine its basic operational principles. Unfortunately, this recommendation fell on deaf ears.
On a scale of 1 to 100 percent, DPFC could not be rated more than 35-40%. The repealed TFC was far better than the DPFC.
TFG President whose single responsibility was to defend the respect and compliance with the TFC, rule of law and good governance norms transgressed his authority by signing phony constitution. It is also an irony to note that the DPFC is not regulating the current transition process as well as the political dispensation expected to come out from it.
The main reasons behind this conundrum are the absence of general political will and agreed upon vision, and the lack of real concern for national interests among the gang of six as well as the lack of credible constitutional making process for preparation and public participation. The gang of six is getting free ride against the best interests of the Somali people. It is mind-boggling why the UN and international community squandered time and resources for 7 years on constitution that has no reference and applicability to the current transition and to the next political dispensation and problems.
Deficiencies in DPFC
The following comments illustrate the deficiencies in the DPFC.
The DPFC is composed of 210 articles and two annexes. But68 articles starting from 131 to 198 are yet to be drafted. Therefore, DPFC is not a serviceable constitution because it is not even at rough draft stage, lacks stakeholders, legal principles, language, clarity and style. It is full of errors, duplications, and contradictions.
Article 1 declares that Somalia is a Federal Republic while 95 % of federal components (States) are inexistent and the existing samples are unwilling to submit to the jurisdiction of Federal Government. Article 208 (1) prescribes that until all States of the federal governments are established, the existing States-Somaliland, Puntland, Galmudug, Himan and Heeb, and Azania, will be subject to their Constitutions and not to the provisions of DPFC. In addition, the financial matters, natural resources and other issues fundamental for national State functions are constitutionally postponed. So, who the Federal Government will represent and serve and how?
The proposed concept of federalism for Somalia fails to tests based on Islam, national interests, regionalism, clanism, citizenship, politics and economics. In an open debate, this can be easily demonstrated. Foreign-driven clan-based Federalism became insurmountable barrier to the emergence of effective National Government in Somalia.
Article 7 (3) legitimizes the claims of international dispute against Somalia’s territorial, maritime and air borders. The inclusion of this provision in the DPFC represents treason. The illegally toppled TFG parliament rejected twice this kind of claims and overture.
Article 9 (1) confirms that the Capital (seat) of the Federal Government is undetermined. This means that the Federal Republic of Somalia has no capital in accordance with DPFC. If this is for undisclosed Somali interests, the signing of DPFC was even a greater political blunder.
Article 21 on the freedom of movement and right to residence is against the principles of the proponents of federalism. At this juncture, residents in Somalia are either Citizen of “Regional State” or of “Clan.”
Article 45 annuls the provisions of article 51 (g) which prescribes fair distribution of resources among Citizens.
Article 49 (2) denies the legal existence of one region since there is only two levels of government- Federal and State, while article 50 (4) recognizes the existence of 18 regions as at the end of 1990.
Article 56 prescribes the numbers of MPs of People’s House as 225 MPs and of the Upper House as 54 MP. Understandably, the TLs suggested 275 MPs for well-motivated political reasons. Furthermore, the LTs proposed that the 135 TLs are seated in the Upper House. Unfortunately, the PM rejected both suggestions out of hand. This shows lack of inclusivity and public participation, and disrespect towards the TLs. DPFC is a foreign document dictated by aliens.
In electoral system, it is impossible to implement the provisions of article 65 (3) which requires that the representation in the Parliament among various social groups is balanced. Similarly, the requirement of article 73 (b) consisting in equal numbers between states is not possible if the system is based on number of regions. State of three regions will have more representatives than State of two regions.
Article 68 is ridiculous because it says that parliament can be dissolved if it doesn’t approve Government Cabinet. The Parliament has the power of rejecting government with legitimate vote.
Articles 70 (5,6) and 64 all concerning on the legislative powers and functions of parliament need substantial revision and harmonization.
Articles 105 to 109 dealing with Judiciary and courts are imprecise and impracticable.
Articles 110 to 114 deal with 13 independent institutions. The coordination and relationship of the functional responsibilities between Federal Government, Regional States and Independent Institutions in DPFC is poorly defined.
Against Article 121 which requires the harmonization of federal and state constitutions, article 120 affirms the exclusive rights of States to regulate their parliamentary and executive institutions in their State Constitutions. Constitutions of the existing Regional States override DPFC provisions.
Article 122 prescribes that financial matters will be negotiated between Federal Government and Regional States when all regional States are established. This preempts the formation of national government in the foreseeable future.
Article 199 (1) prohibits amendments on articles of the DPFC during the first four years.
Articles 199 to 210 concerning on the general transitory provisions and the annexes A and B focusing on the amendment process all are too confusing and in conflict with parliamentary powers and functions.
The approval or rejection of DPFC by TLs and NCA has no relevance. It is just for public relation and legitimacy claim for rigged process. The UN, with substantial financial resources at its disposable, formed multiple committees in order to control and influence the SRS, TLs and NCA.
It was and still is wrong to draft Constitution in the absence of true and verifiable national reconciliation, political will and constitutional framework to form a national government throughout Somalia. The phony constitution is forced on Somalia’s throat. Somalia deserves better treatment than the continuation of chaos and political mishaps by apocryphal tactics.
By Mohamed M. Uluso
Members of gang of six are: President Sheikh Sharif Sh. Ahmed, Speaker Sharif Hassan Sh. Aden, and PM Prof Abdiweli M Ali of TFG, President Abdurahman M Farole of Puntland State, President Col Ahmed M Alin of Galmudug State, and Hon. Abdulkadir Moallim Nur of Ahlu Sunna Wal Jama (ASWJ) representative. Their fascinating new title is “Signatories”, or “Stakeholders”, or “Principles” of the Roadmap.
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