Hiiraan Online

In February of 2013, 500 delegates from Lower Jubba, Middle Jubba and Gedo started gathering in Kismayo to establish a regional administration or constituent unit called Jubbaland State of Somalia under the Federal Charter.  In April, 870 delegates approved a draft charter and a flag.  Around 50 members of the Federal National Assembly attended the ceremony.  On May 15, 485 out of 500 delegates from the three regions elected Sheikh Ahmed Mohamed (Madobe) as the first President of Jubbaland State.  On May 17, the new president appointed General Abdulahi Sheikh Ismail (Fartag) as his vice president.

The federal government contested the process and called it unconstitutional; however the new President of Jubbaland, traditional elders, civil society, technical committee of Jubbaland process, men and women who liberated 8 districts out of the 15 in Jubbaland State from Al-Shabab believe that the creation of Jubbaland is constitutional and asked the federal government to upheld the constitution, and respect the will and determination of the people.

There have been different meetings between the two groups, but unfortunately an agreement wasn’t reached.  Let me compare the arguments of both the federal government and Jubbaland State.  The federal government bases its claims on the following clauses in the Charter:

Clause 50 (1), the number of the new federal member states and their boundaries will be determined by the National Federal Assembly.

Jubbaland State bases it claims on the following two clauses in the Charter:

50 (5), the boundaries of the new federal member states is based on the 1991 boundaries (pre civil war).

50 (6), At least two or more regions can form or unite under one regional state and can be under the new federal system.

Further more under clause 50 (2), The National Federal Assembly is required to establish a National Commission to do a national survey on federalism and report back its findings with recommendations to the National Assembly.  It’s imperative to note that the National Assembly didn’t create such commission yet.

Under clause 111 (f), (1), the federal government is obligated to create a National Boundaries and Federalism Commission to support the creation of new states.  Also clause 111 (G), (1), the federal government is required to establish Inter-Governmental Commission to bridge between the federal government and new states.  Unfortunately none of these commissions are established as of yet which doesn’t help the situation.

On top of their differences and lack of institutions, there is already an escalation in tensions between the federal government and the new Jubbaland State.  Recently the new vice president of the state General Fartag accused the federal government of mobilizing local militias to start a war and disrupt the security gains made by Jubbaland forces with the help of Kenyan and Ethiopian troops.  There is also a deep rooted mistrust between the federal government and Jubbaland on whether the federal government wants to defer federalism, scrap it all or play around with new boundaries of the new states satisfying certain constituents in the country.  

Very often conflicts such as the Jubbaland one is not over the legal interpretation of what the powers are, but over what respective powers or roles of the two parties should be.  Federations can deal with conflicts over the distribution of powers by using constitutional court, supreme court, emergency powers, constitutional amendments or political compromise.  In Jubbaland case none of these are almost practical except a political compromise.  Somalia doesn’t have constitutional court and functioning supreme court which could have resolved the matter by issuing their verdict on the issue.  At this point there is no court that can interpret clauses in the Charter or tell which clause supersedes than the other.  The federal government shall establish reliable and independent courts as stipulated in the Charter. 

Canada which has one of the best federalism and democracy in the world, one of its provinces Quebec didn’t sign or agree the Constitution Act, of 1982, but Canada functions as one of the best models in the world under a political compromise with Quebec.

In the Jubbaland stand-off, one of the few options is to have some sort of political compromise between the federal government and Jubbaland which permits the federal government to recognize Jubbaland with the current leadership temporarily for three years.  In Jubbaland’s Charter the creation of the state is temporary for three years.  We need this deal so that within the three years the federal government can enact the institutions and the legal framework it requires with consultations of regional states.  Also Jubbaland can continue liberating the remaining districts in the region with the help of Kenya, Sierra Leone, Ethiopia and the federal government.  This is a win-win situation for the country.

I don’t think starting a second conference in Mogadishu later would solve any issue without such political compromise.  Leaders of both sides need to avoid putting back the country into the dark ages again.  If this crisis is not resolved politically it can jeopardize the existence of the federal government.  We need to learn from our past mistakes.  Former British Prime Minister Winston Churchill said quote “those who fail to learn from their past history are destined to repeat it”

At the end of the day, diplomacy shall prevail to avoid another disaster.