by Asha-Kin Farah Duale
Sunday, October 12, 2014
Whether the current Provisional Constitution is confusing, up-setting or pointing up unnecessary hurdles to individual’s plus clans’ aspirations, or whether it is perceived discriminatory, divisive or/and imposing an ‘alien’ governance structure, the reality is that, for the time being, this is our primary legislation and we have to live with it.
In particular, the question of federalism and the formation of new State members that makes us all to cogitate and throw up all sorts of diverse reasoning clearly are begging for an open and honest debate. I am not envisaging a united view on this subject but I should like to say, at least, we got a starting point for an honest debate.
It is no secret that the Constitution at its current format has many weaknesses and loop holes, but, this to me does not necessarily mean that it is aiming to the destruction of our beloved nation if and when appropriate legal mechanisms are adopted to eliminate such gaps.
This brief article is trying to initiate a debate from the legal angle on the thorny issues surrounding the formation of new State members considering that:
1. We have witnessed the impasse created by the establishment of Jubba Land Federal State and the following Addis-Ababa agreement that quelled all arguments including the Federal Government’s power of administering regions directly for a maximum of 2 years prior the establishment of new federal member states as per Art. 48 of the Constitution.
2. We have witnessed the strong objection against the merger of Mudug and Galgudud regions for the formation of new Federal member state by Puntland to the extent that a recall of all Puntlander MPs back to their constituencies was necessary coupled with the threat of severing links with the Federal Government if such plan would take ground. This is in stark contrast with Art. 49 that prescribes 18 regions and not half or quarter of a region as legal entity.
3. We are witnessing the on-going controversy over the 3 or 6 formulae (or more accurately, clans’ crisis) for the South West Federal State and its implications on Jubba Land and Lower Shabelle regions.
4. We are witnessing the Khatumo State’s decision to break away from Somaliland, this new development needs to be debated with the aim of finding solution/s within the existing legal framework.
5. We are witnessing the implication of Art. 49 (6) on the formation of Hiiraan State considering its unique position as the sole survivor of the 8 pre-independence regions of Somalia. This coupled with the former President’s decree of dividing Hiiraan region into 2 parts that would facilitate the criteria of 2 regions to be met. This decree issued on 23 July 2012 predates the Provisional Constitution approved by the Provisional Constituent Assembly on August 2012.
6. Lastly the positions of both Shabelle regions remain unclear.
Art. 48 cites ‘ 1) In the Federal Republic of Somalia, the state is composed of 2 levels of government: (a) The Federal Government level and (b) The Federal Member States level which is comprised of the Federal Member Government and the local governments.
2) No single region can stand alone. Until such time as a region merges with another region (s) to form a new Federal Member State, a region shall be directly administered by the Federal Government for a maximum period of 2 years.
This means that the Federal Government has a constitutional duty to assist the regions by directly administrating them until the formation of a member state. However, this does not mean that the Federal Government or any other ‘external’ political entity including the UN or our neighbour countries of Ethiopia and Kenya has the right to impose unwanted political governance structure. Besides the past numerous conciliation meetings, where the fist of the powerful ‘entities’ are reflected in the decisions, no clear-cut legal mechanism addressing entangled claims and counter claims has so far been engaged.
Furthermore, Art. 49 states: 1) The number and boundaries of the Federal Member States shall be determined by the House of the People of the Federal Parliament.
2) The House of the People of the Federal Parliament, before determining the number and boundaries of the Federal Member States, shall nominate a national commission which shall study the issue, and submit a report of its findings with recommendations to the House of the People of the Federal Parliament.
(3) The nomination of the commission referred to in Clause 2 shall be preceded by the enactment of a law by the House of the People of the Federal Parliament, which shall define:
a. The responsibilities and powers of the commission;
b. The parameters and conditions it shall use for the establishment of the Federal Member States;
c. The number of the commissioners, requirements of membership, nomination methods, office tenure, and their remuneration.
(4) The number and the boundaries the districts in a Federal Member State shall be determined by a law enacted by the parliament of the Federal Member State, which must be approved by the House of the People of the Federal Parliament.
(5) Federal Member State boundaries shall be based on the boundaries of the administrative regions as they existed before 1991.
(6)Based on a voluntary decision, two or more regions may merge to form a Federal Member State
Art. 49(1) also clearly illustrates the House of the People’s responsibility for making the final decision on the boundaries demarcation of Member States which should be based on the recommendations of the Boundaries and Federation Commission
Art. 54 illustrate the allocation of powers and grants the Foreign Affairs, Citizenship and Immigration, National Defence and the Monetary Policy within the powers of the Federal Government. However, the division of revenue and resource sharing between the Federal Government and the Member States is not defined within the Constitution (Art. 44 and 54)
Moreover Art. 120 acknowledge the existence of federal state(s) prior the Constitution and leave the establishment of the legislative and executive bodies of the Member states within their own constitution.
The Provisional Constitution is not carved into hard stone- it is subject to review by the following bodies:
1. According to Art.134 of the Constitution the Independent Constitutional Review and Implementation Commission was appointed in June 2014; however it has yet to initiate re-drafting any proposed constitutional amendments under supervision and guidance of the parliamentary Provisional Constitution Review and Implementation Oversight Committee (Oversight Committee).
2. The House of People with the recommendation of the Boundaries and Federation Commission will decide on the formation of Member state. Powers and duties of the Commission are enshrined in Art. 111E. (Yet again the Boundaries and Federation Commission has yet to be established)
3. According to Art.109 (c) the Constitutional Court should decide on the legal interpretation of the Constitution and/or violation of the Constitutional rights. However, the Constitutional Court has yet to be established. Issues of constitutional nature should have been dealt by the Constitutional Court. (whether its final judgements are accepted by contending parties is another set of issues that is beyond the scope of my article!)
4. The people’s referendum will be determining the fate of the Constitution by reflecting the people’s choice. However so far little has been done towards initiating the whole process of democratization including the registration of voters.
The above pillars are either missing altogether or lacking of necessary resources thus alienating the right of stakeholders to resort to the legal process for their Constitutional safeguards. It is unfortunate that back in April 2013 the National Conference on Justice urged the Federal Government to table before the House of People within 5 months the Constitutional Court Act thus allowing the Court to be established. Similarly the Boundaries and Federation Commission should have been a top priority while simultaneously engaging negotiation and conciliation operations process.
The constitution is a living document and should be subject to review and it should reflect the aspirations of the majority of Somalis to co-exist with ourselves and with our neighbours. The arguments and counter-arguments fuelled by the formation of new ‘Member states’ should not be only subject to local clan politics that may aim to fulfil individual or/and clans’ interests but it should be subject to a fair and just legal process.
With the current trend of resisting changes, the Federal Government is undermining major aspects of legal development and reforms to upgrade our Provisional Constitution. Moreover, the lack of resourcing existing legal structures are clearly a hobble to the process of local, regional and central governance and it has created the negative and divisive impacts that we all are witnessing.
Until the current trend is changed, I am afraid that we are all entertaining a dull monologue
Asha-Kin Farah Duale
Email: [email protected]