For a constitution to be created successfully, the process must be transparent, inclusive and thoroughly debated.
'In order to save the process, Ambassador Mahiga (R) and his stakeholders must heed the will of the people and allow the next parliament to debate the content of the revised draft-constitution ' [Reuters]
by Afyare Elmi
Saturday, May 12, 2012
Doha, Qatar - Somalia's transition can be rescued, but only if cooler heads prevail.
Sheikh Bashir Salad, the chairman of the Council of Religious Scholars of Somalia, has issued a statement criticising the content of and the process for legitimising the international community-funded and controlled draft-constitution of Somalia. He has called for openness and transparency in the constitution-making process and demanded that Somalia's religious scholars be consulted. Civic and political forces and several clans followed the religious scholars and made similar demands. In response, the international community has released a warning letter, calling dissenters as spoilers and threatening to punish them. This adds fuel to the fire.
Two factors are behind the deep suspicions that many Somalis have expressed about the draft-constitution. First, Somalis perceive that they do not own the draft-constitution. From its inception in 2005 to the present, the United Nations Development Programme (UNDP) and the United Nations Political Office (UNPOS) led by the SpecialRepresentative to the Secretary General (SRSG) have controlled the constitutional process of Somalia.
Furthermore, the draft-constitution and the subsequent political agreements propose a bicameral legislature that represents regions. It is imperative to revised this poorly thought out institutional design. Instead, the upper house should represent clans because the most salient identity that has to be represented within the political system of the country is the clan identity. There are cases where upper champers represent socially defined groups. Unlike the United Kingdom, Somalis are not aristocrats, but there are multiple clans contesting for meagre economic and political resources. Somaliland has successfully created an Upper House that contributed to the peace. Whether this Upper House should have legislative or advisory functions is open for debate, but it is necessary to institutionalise clans into the political system.
The lower house, on the other hand, now represents clans. This, needless to say, must change as it has to represent the population through a closed-list, one national constituency, and proportional representation. This means that, for the lower house, political parties would compete for national seats. This type of electoral system is suitable for countries that are recovering from conflicts because it is, according to Arend Lijphart (a leading scholar of comparative political science), simple, fair and inclusive.
The draft-constitution also proposes a parliamentary system for Somalia. The intention is to keep the current ineffective system that divides the executive into a president and a prime minister with minor changes. Currently, legislators elect the president and the president appoints a prime minister. However, most of the substantive powers are with the Council of Ministers, though the president has the final symbolic signature. The practice, however, has been that each of the past presidents has managed to turn his symbolic powers into a substantive one, thus making the process conflict-ridden.
Second, for many Somalis, the fact that the draft-constitution is identified with the SRSG, Ambassador Augustine Mahiga, and the six so-called "stakeholders" is sufficient for its rejection.
Then came his recent remarks against Islamist politicians who formed the Daljir Forum, parliamentarians and other leaders who portrayed the SRSG as anti-Islamic and undemocratic. He made very clear his dissatisfaction to see any of these leaders running. And this came at a time when the widespread belief among Somalis was that the SRSG engineered the Kampala Accord, which unseated one of the most popular governments in Somalia in recent years - and the roadmap that has nullified nascent Somali institutions such as the parliament - only to create and empower six individual politicians.
Moreover, the SRSG's liberal use and abuse of the label "spoiler" against anybody who questions his approach created a credibility deficit for the UN and, thus, for the constitutional process. For many, the roadmap recycles the status quo, as these six individuals have manipulated the process by corrupting the selection of the parliamentarians and the constitutional process.
Third, many Somalis question the wisdom behind rushing a draft-constitution at this time. Somalia's past governments have prepared at least three constitutions between 1960 and 1990. Of these, the 1960 constitution is the most democratic and legitimate because it had been ratified by referendum in 1961.
Content and the process
For the record, I believe that the whole exercise of making a new constitution for Somalia is unnecessary. There was no need to invest eight years and millions of dollars. If the international community wants to promote democracy and if Somalis want to respect and use it, the 1960 constitution (with some amendments) would be the best and the most efficient way to achieve both.
By and large, the contents of and the process for legitimising the proposed draft-constitution are flawed. The drafters prescribe the wrong institutions for regulating the conflict, and they have arbitrarily removed a number of articles from the 1960 constitution without deliberation.
With regards to the process, the SRSG and the stakeholders are not open and transparent as they have not yet released the revised draft to the public. Moreover, the seven signatories of the roadmap want the constitution to be adopted by a mini referendum of 825 members of a constituent assembly who would vote on whether to adopt the draft constitution. For many Somalis, this is not acceptable.
Content-wise, the new constitution proposes a federal system, bicameral legislature and parliamentary model.
Although some are passionate about it, the debate on federalism, decentralised unitary system and unitary state is too abstract for the layperson. But Somalis in all regions want three basic and universal demands to be met. Regardless of the region they come from, Somalis want to get access to basic services in the cities and regions they live in; they need to get a fair share of the development projects; and they demand to elect their representatives locally, regionally and nationally. Both decentralised unitary systems are more effective and efficient when it comes to satisfying the three demands that Somalis want. Somalia also lacks most of the conditions that would necessitate federation. Therefore, imposing a federal system based on clan-based gerrymandering of regions will create more problems than it solves - it will add a territorial layer to the already complex situation.
Eventually, the choice between the presidential and parliamentary systems is about reconciling the value of stability of the executive (the presidential system is stronger in this) and the value of accountability of the executive to the legislature (where the parliamentary system is stronger).
If history offers any lesson, it is that a divided executive (president and prime minister) will not work in Somalia. As the examples of both Somaliland and Puntland show, a presidential system will work better in the Somalia context than the current divided executive. Some of the new political parties call for a presidential system. But, even if the current divided executive is to be kept, the president's power to dismiss the prime minister - a clause included in the 1960 constitution - will have to be included in the current constitution in order to stabilise the system. Either way, more public discussion is needed.
Moreover, using the 1960 Somali constitution as a point of reference, drafters arbitrarily removed many articles from the draft-constitution that was published in July 2010. The articles that have been removed silently are wide-ranging, thus affecting governance, Islam, citizenship and the powers of the different institutions. This further raised people's suspicions.
Finally, with respect to the process, the idea that a temporary and arbitrarily selected 825 members of the so-called "constituent assembly" would "ratify" the constitution by "way of yes or no vote" makes the process illegitimate. Technically, one can argue that what is being proposed is not a constituent assembly - such assemblies make constitutions. Instead, it is a sort of a mini-referendum and that compromises the legitimacy of the process. The drivers of the process (SRSG and the six Somali politicians) must revisit their terms of reference when explaining it to the public.
Potential and dangerous implications
Somalis have genuine issues with the content and the faulty process employed to legitimise the draft constitution. If the international community does not listen and address these concerns, two negative consequences might result.
First, as has already happened, actors that oppose the whole constitutional development of the country and a number of notorious warlords may hijack the public dissatisfaction against the constitution. As the press has been reporting, this might give an opportunity to those who want to re-ignite the active conflict. Somalis do not want to see warlords waving clan flags anymore, so the international community must be cautious not to create an opportunity for them.
Second, even if potential conflict is contained, and the constitution is forced on the people, it will be considered illegitimate in the eyes of many Somalis. Repression will only drive those resentments underground or the people might support the negative forces. This is the last thing that the Somalis want. The small but significant progress should not be jeopardised.
Rescuing the process
The process of moving forward can be salvaged. But the following four steps are needed. First, the UNPOS and the "stakeholders" must make the process open and transparent. Although the government announced that the revised draft-constitution has been ready since April 20, 2012, they have not released it to the public at the time of writing this article. The fact that only the international community and the so-called six politicians will have veto power over the process is why many Somalis question the whole document.
Second, there are many unresolved issues that need more time and discussion. Rushing the constitution and forcing it on the people would not advance the cause of democracy. Politicians such as the former prime minister, Mohamed Abdullahi Farmajo, Islamist politicians that established the Daljir Forum, the Somali parliamentarians, and religious scholars want to participate in the process. Therefore, as the Council of Religious Scholars of Somalia, political parties and civic forces demanded, the drivers of the process should make more consultations with these groups.
Third, the 1960 constitution will be used as a reference point, as Somalis have ratified it through public referendum and used it for nine years before it was suspended by the military regime. Many laws are based on the 1960 constitution. Therefore, all of those clauses and articles that have been removed from the draft should be re-inserted in the revised document. Promises and assurances are not sufficient. As trust in the government is low, people will believe it when they see it.
Finally, the best, and perhaps the easiest, way to move forward is to focus on the selection of the parliamentarians for the coming weeks. Unfortunately, the "stakeholders" have corrupted the process of the selection to the extent that one can safely predict the results. An audit committee of some sort is needed in order to reduce the irregularities.
With regards to the constitution, the new parliament should become a constituent assembly and deliberate the constitution as the first item of business when it convenes in June. The advantages are clear. First, there is precedent for this as such a process was used in 1960 when Somalia became independent. A constituent assembly consisting of 90 deputies and 20 additional members adopted the constitution provisionally and then the Somali people ratified it in 1961. The parliament is also more representative than the bodies that drafted it. Interestingly, the London conference initially proposed this option to simplify the process - but unfortunately, it was not heeded.
In a nutshell, the fact that the selection of parliamentarians is taking place in Somalia, and that Somalis are discussing and debating about the strengths and weakness of a constitution should be welcomed and supported. So, in order to save the process, Ambassador Mahiga and his "stakeholders" must heed the will of the people and allow the next parliament to debate the content of the revised draft-constitution and then adopt it provisionally.
Afyare Elmi is an assistant professor at the Qatar University's International Affairs Department and he is the author of Understanding the Somalia Conflagration.