By Bashir M. Sheikh-Ali
Wednesday May 11, 2022
In 2012, stakeholders in
Somalia's political transition process agreed on a provisional constitution.
That document lays out a political solution whose weakness is laid bare by the
many challenges that the country had since faced. The key ingredient of this political
solution is a federal structure that initially uses the now famous 4.5 power
sharing. Although one would be tempted
to poke holes in this political solution and the underlying government
structure (and there are many holes a knowledgeable person can choose from),
the purpose of this paper is not to critique the document itself. Rather, the
purpose of this paper is to illuminate the challenges facing Somalis in taking
this provisional document and converting it to a viable constitution that can form
the basis for a Federal Somali Government.
In this paper, I will briefly
discuss complexities unique to federalism as well as Somali cultural norms that
will likely be the biggest hindrances to form a federal government in Somalia. Then, I will touch on how Somalia’s current
state of governance poses additional challenges in creating a federal
government. I will finish the paper with
some key features that need to be addressed before federalism can be a reality
Norms and the Role of the Minorities
Governments do not come into existence in vacuum. Rather, governments rise from societies and
their cultural norms form the foundation for such government. Listed below are few Somali cultural norms that
pose significant challenges to the creation of any Somali government.
Somalia’s most challenging norm is the obvious one—clannism
and all its ills. Although the stated
purpose of the 4.5 structure was to transition the country to one-person one-vote,
it has become so ingrained in Somalis’ thinking that they look at everything through
4.5 lenses. Further, not only clannism
has become intractable in Somalia, but it is also a contributing factor to a
number of other negative cultural norms that Somalis developed more recently.
Absence of accountability has become such a norm in
Somalia that extrajudicial killings, the taking of public property and the
purchase of votes are openly discussed without anyone frowning over them –
unless frowning on it serves a political purpose. In a country where no one is accountable for
anything, corruption has become rampant.
Although the absence of accountability in Somalia has its roots in the lack
of an effective and independent judicial system, it is also complicated by clannism
because any wrongdoing becomes a clan issue.
Theft of public properties has become so normalized
that the value of any government appointment is measured in the appointee’s
ability to steal from the government. Any Somali who holds a government position
is expected to benefit themselves, their immediate family, and their clan. Somalis even coined terms for responsible bureaucrats
(those who wouldn’t use their position for personal, family, or tribal purposes)
– they call them “wax kama qabsan” or “wax ma tare,” which literally means
someone who did not enrich themselves or their kin. This expectation of benefitting your clan or kin
is an exasperating factor to this negative cultural norm.
Although Somalia always had a ministry for planning, Somali
government bureaucrats do not do much planning.
Rather, they present what they think is a reasonable budget for any project,
knowing that much of the money is heading towards the bank accounts of one or
more players in the scheme. Lack of
accountability is a contributing factor to this norm. Because people have no expectation that any project
will be managed correctly, no one worries about whether it will ever be
completed. If people had expectation of
accountability, they would possibly have some plan. Thus, this negative norm is intertwined with
other negative norms discussed above.
Somalis claim to be homogenous – yet they treat
minorities horrendously! Somalis isolate
minorities and call them names; they then use those names as an insult to each
other. Somalis also have a culture of
looking down on each other-- even the so-called major clans look down on others. Somalia’s presumed homogeneity (in culture,
ethnicity, language, and religion) hides many negative cultural norms and may
be more of a myth than a reality. Instead
of pretending that Somalis are a homogenous society, the federal constitution
must provide guarantees that all Somalis are equally treated under the law and
prohibit all forms of discriminations ingrained in Somali culture. Any Somali federal constitution should
include protections specific to minority rights.
In creating a government, we must address these
cultural norms upfront lest they exasperate the entire process. Unfortunately, there are not many Somali
norms that would be particularly helpful in creating a government.
and Cooperation are Key
Federalism is by far the most complicated system of
governance that has ever been used anywhere in the world. Whereas power emanates from one source in a
unitary system of governance, there are two competing power centers in a
federal system. It is an aphorism that governments do not willingly relinquish
powers – they do so reluctantly and only if inevitable. Instead, governments tend to usurp as much
power as they can, especially if its boundaries are ill-defined. Thus, any
federal system is susceptible to conflicts between sovereigns. With Somalis’ proclivity to “rule of men”
rather than “rule of laws,” any weakness in the federal structure will be an
opportunity for exploitation by rudderless men (and occasionally women). Thus, not carefully defining boundaries
between the powers of the federal government and that of the member states invites
exploitation and weakens the entire system. Therefore, the provisional
constitution should be carefully modified to define the distribution of powers
between the two power centers such that both the federal and member state
governments are shackled to prevent encroachment into each other’s territories.
If the two governments encroach into each other’s power territories, the
country risks descending into dictatorship or, more likely, disintegrating into
The very nature of federalism is based on conflicting
interests that need to be carefully balanced through a negotiated process. Just declaring federalism without doing the
hard work necessary to create a carefully crafted federal system postpones the
inevitable disintegration of the country into feuding fiefdoms, which will likely
be controlled by neighboring countries. Once
these complex inter-governmental relationships in a federal system are viewed
under the lenses of Somalis’ cultural norms discussed above, it becomes clear that
the path to Somali federalism is a very tortuous one. The question is whether
Somalis have reached political maturity to give this task its dues or whether they
will shrink from the task and watch their country disintegrate.
of a Federal System and Somalia’s Realities
The only pre-requisite for the existence of a unitary
government is the power itself. Even
successful coups lead to a unitary government. Conversely, power alone is not
enough for a federal government to come into existence. Rather, federal
governments come into existence only after two sovereigns agree to co-exist,
with “agree” being the keyword in this sentence.
Federal systems come into existence through a process
of aggregation (where sovereign entities combine to create a federal government)
or through devolution of a unitary government into federal member states. An example of a federal system that came into
existence through aggregation of sovereign nations is the world’s most
developed federal system—that of the United States of America. There are
several federal systems that have been created through devolution of an
existing central government.
Somalia does not fit into either of these two historic
models of formations (aggregation and devolution). Somalia does not have a central government
that can undergo a devolution process and create member states. Somalia is not made of sovereign regions that
can come together and form a federal government through an aggregation process. Instead, Somalia has regions with varying degrees
of organizations and autonomy. On one extreme,
there is the autonomous region of Puntland and the de facto state of Somaliland[i] – both self-declared and
both with regional governments that exercise (some) power over their respective
citizenry. On the other extreme are Galmudug and Hirshabeelle, which have been
cobbled together from regions that existed in former unitary governments but
with no viable governments of their own. Jubbaland and Southwest appear to fall
somewhere between the two extremes. Then, there is Mogadishu, which is not treated
as a member state and has a mayor appointed by the central government instead of
an autonomous administration. Negotiators
should address the status of Mogadishu at the onset of any discussions towards
building a federal government.
Somalia declared federalism but refuses to do the hard
work necessary to integrate these diverse regions into a federal
government. Thus, federalism exists in
Somalia in name only. With no central
government to devolve into member states and no sovereign member states to give
enumerated powers to a federal government, whatever Somalis do in creating a
federal government will require an unprecedented and yet unknown process.
Structure—the Two Political Branches (Legislative/Executive)
All federal systems have one common property: each sovereign
has an executive branch, a legislative branch, and a judicial branch. Since the
two political branches have the power and the ability to tax and spend money, they
are responsible for the implementation of all the constitutional mandates,
including the creation of a judiciary branch that can hold its mandate as the
third leg of the federal or member state government.
Structure--The Judiciary (the Apolitical Branch)
A functioning judiciary, supported by the two political
branches with budget and enforcement of its rulings, is a cornerstone of the
establishment of a rule of law. It requires competent judges who are free from
interference from the two political branches. The judges would be free of
interference only if they are properly compensated and adequately protected. Physical
and financial insecurities corrupt judges.
In a federal system, federal judiciary takes such an
indispensable position that some consider it to be the most important branch of
the entire federal system. As Alexander
Hamilton succinctly described it, “Of the three powers, judiciary is next to
nothing.” Indeed, the federal judiciary
is typically designed to keep the peace between the two political branches of
the federal government. It also keeps
the peace between the federal and member state governments and among member
There are several considerations unique to federal
systems that are often in play in judicial proceedings. The federal judiciary
primarily rules on disputes arising out of federal law whereas state judiciaries
address disputes arising out of state laws.[ii] If an issue arising out of state law is part
of a dispute in a federal court, the federal court may have to pretend that it
is sitting in the state court on that issue and determine how a state judge
would rule it. Conversely, if an issue arising from federal law becomes part a
dispute in a state court, the state judge must rule that issue using federal law.
The judiciary in a federal system must be designed to work
in an integrated manner such that disputes are resolved once and for all (with
all attendant appeals processes). In
other words, disputants should be able to reach an end of the disputes in an
efficient manner. One way to integrate
courts in a federal system is the use of good faith and credit to resolutions
in anywhere in the system (i.e., once a dispute is validly resolved in one
jurisdiction, it is resolved everywhere). There needs to be some form of supremacy
clause if there are federal and state laws that apply to any dispute. Given the complicated nature of federal judiciary,
we must carefully design it and properly support it.
In a federal system, the three branches of the
government rely on each other for maintaining a functioning system; however,
they are independent of each other. The
powers of the three branches must be separated such that there is rarely a
question of which branch has an authority over anything. An important principle of separation of powers
under federal systems is that no person can be employed by more than one
sovereign or by more than one branch of government within a sovereign. For example, no member of the legislative
branch of the federal or of a member state should carry any executive duty in
their respective sovereign. Similarly,
no judge or law enforcement officer should be a member of the legislative
branch. Failure to adhere to strict
separation of powers principles will create chaos because members with dual
allegiances often become agents of destruction.
and Citizens’ Relationship with the Federal System
Equally important in federalism is the relationship between
the federal and the member state governments on one hand and the public (both individual
citizens and businesses/associations) on the other hand. The public needs to know which government has
authority over their conducts. If the
federal and member states have concurrent powers over a conduct, those powers must
be defined with clarity, including a supremacy clause.
Co-sovereigns often exercise concurrent powers over businesses
where corporations with national presence may become susceptible to the whims
of member states’ preferential treatments of their local businesses. To that end, laws in federal systems must be designed
to protect businesses from being subjected to unfair treatments. In addition to
protecting businesses from discrimination based on their origin or ownership, a
federal system must have a reciprocal good faith and credit given to the public
records and proceedings of each member state such that businesses do not have
to litigate the same issue in multiple jurisdictions. If two businesses litigate an issue in one
member state, the proceedings (including any appeal process) should resolve the
issues once and for all.
The federal government should have exclusive power
over foreign policy and national defense, lest the national government risks losing
sovereignty. Member states should have law
enforcement necessary to govern but should rely on the federal security forces
for protection against external aggressions. Federal government security forces
should not be used against any member state for any reason except for mutiny.
Preferential treatment of some member states over
others risks inter-member feuds and could have disastrous consequences for the
federal system. Natural resources should
carefully be handled.
In sum, Somalis need to come to a table and negotiate
the boundaries between the two governments.
Bashir M. Sheikh-Ali
writer is a Somali lawyer who practices Federal and State laws in the United
States. The opinion in this paper is his own opinion and should not be
attributed to any of his partners, associates, or colleagues.
[i] The author
expresses no opinion on Somaliland’s status.
[ii] As used here,
state is synonymous with member state.