On the Finalization of the Constitutional Review Process in Somalia

Following the adoption of the Somali Provisional Constitution in 2012, various setbacks have prolonged the comprehensive constitutional review originally envisaged to last four years. Nevertheless, the current administration has shown commitment towards finalizing the constitutional review process, achieving preliminary consensus on critical subjects like the electoral framework, universal suffrage, and system of government. Yet, unresolved issues remain, and a broad consensus will be needed for the adoption of any constitutional amendments by the Somali Federal Parliament and approval by the Somali people in a referendum – writes Mohammad Osman Jawari

Background

In August 2012, a National Constituent Assembly adopted the Somali Provisional Constitution which ended two decades of statelessness, failed reconciliation attempts, and transitional government arrangements. As the drafters could not agree on several crucial state-building questions and thus considered their work incomplete, they provided for a comprehensive constitutional review process. This review process, as outlined in Chapter 15 of the Provisional Constitution of 2012, was tied to the first term of the Somali Federal Parliament, and thus expected to end after four years, i.e., in August 2016. It was expected that the Somali Federal Parliament, with the help of a Provisional Constitution Review and Implementation Oversight Committee (OC) and an Independent Provisional Constitution Review and Implementation Commission (ICRIC), would review the Somali Provisional Constitution, adopt changes with a two-thirds majority of both houses, and present the reviewed constitutional text to the Somali people for final approval by referendum (Articles 133, 134 and 136).

However, these timelines could not be kept. After a long inception phase, the constitutionally mandated review institutions, the OC and ICRIC, were set up in 2012 and 2014 respectively. They conducted a comprehensive review of the constitution, rectifying language and reference issues and improving the Somali text. Subsequently, in July 2016 three different review options were prepared and presented to the House of the People (Lower House) of the Somali Federal Parliament. Since all Federal Member States were not yet established, as per Article 138(2) of the Somali Provisional Constitution the Somali Federal Parliament was operating as a unicameral federal legislature. However, as time was too short to properly discuss and advance these constitutional review options, the House of the People of the Somali Federal Parliament resolved to defer review of the report presented by OC and ICRIC to the second term of the Somali Federal Parliament.

Following another round of indirect elections in December 2016, in January 2017 the Upper House was established and the Somali Federal Parliament transitioned to a bicameral legislature. As envisaged in the Somali Provisional Constitution, the OC was reconstituted as a joint committee of both houses and worked together with the ICRIC to further advance the constitutional review process. Following the signing of a Memorandum of Understanding with the Ministry of Constitutional Affairs that established principles, duties, and roles, and working off the three constitutional review options developed by the predecessor OC during the first term of the Somali Federal Parliament, the OC and ICRIC developed a revised constitutional amendment document that provided for the completion of the federal structure, a revised structure of the three branches of government at the federal and state level, as well as a new chapter on public finance. This document underwent consultations with various stakeholders, including the Constitutional Affairs Committees of the five Federal Member State Legislative Assemblies, the Ministries of Constitutional Affairs of the five Federal Member States, and numerous actors in Somali civil society.

President Mohamed Farmajo issued a Presidential Decree in December 2020, which deferred the completion of the constitutional review process to the third term of the Somali Federal Parliament.

Ultimately, however, the constitutional amendment document developed by the OC and ICRIC was not allowed to move forward for adoption. President Mohamed Farmajo issued a Presidential Decree in December 2020, which deferred the completion of the constitutional review process to the third term of the Somali Federal Parliament. The reason for this deferral was that the reviewed constitution caused further contention between the Federal Government and the Federal Member States at a time when tensions were already high due to the delay in the election preparations and lack of agreement on how to organize these elections. The main reason, however, was that the delayed completion of the Somali Federal Member State formation process during the ninth parliament (2012 and 2016) did not allow for the envisaged political negotiations between the Federal Government and the Federal Member States on key open questions such as federal power sharing and resource/revenue sharing, further outlined below. There had been initial successes in the Jowhar and Baidoa agreements on elections, justice, security and natural resource sharing as well as the proposed chapter on public finance developed by the Federal and Federal Member State Ministries of Finance, but the negotiation process collapsed due to the Federal Government’s heavy interference in the Federal Member State elections and deteriorating relations, particularly with the Federal Member States of Jubaland and Puntland.

Current Situation

Going forward, one needs to take into consideration the current political situation and its implications for the constitutional review and implementation process. A broad consensus will be needed for the adoption of any constitutional amendments by the Somali Federal Parliament and the actual approval thereof by the Somali people in a public referendum. During the ninth and tenth parliament from 2012-2022, such a broad consensus was clearly out of reach. To now finalize the constitutional review process, political agreements will firstly need to be reached by the Federal Government and the Federal Member States. These agreements must address unresolved questions of the Somali federalization process, most notably the distribution of powers and competencies between the different levels of government and the status of the capital Mogadishu within the federal system. Additionally, it is likely that even matters on which political agreements were reached in the past, i.e., the future election model, natural resource sharing and the organization of the security and justice sector, will need to be renegotiated. This is because most of the signatories of these political agreements have been replaced following elections and their successors have already voiced their disapproval of the political agreements as negotiated by their predecessors. Further, the model chapter on public finance was only a proposal developed by the Ministries of Finance of the Federal Government and the Federal Member States, and was never endorsed by the political leaders of the Federal Government and the Federal Member States themselves.

On 27 May 2023, a significant political consensus was achieved regarding the electoral model of the Federal Republic of Somalia through the dedicated efforts of the National Consultative Council . . . 

Following the election of President Hassan Sheikh Mohamud in 2022, it seems that the Federal President and the Presidents of the five Somali Federal Member States are indeed committed to finalizing the constitutional review process. Initial political agreements have been reached by the Federal Government and the Federal Member States on the open questions of the Somali federalization process, the resolution of which is foundational to further constitutional development. These agreements encompass critical subjects such as:

• Federalization of the Justice System – Mogadishu, 28 December 2022;
• Allocation of Powers and Competences – Mogadishu, 28 December 2022;
• Structure of the National Security Model – Baidoa,15-17 March 2023;
• Natural Resource and Revenue Sharing – Baidoa, 15-17 March 2023; and
• Electoral Model – Mogadishu, 27 May 2023.

Most notably, on 27 May 2023, a significant political consensus was achieved regarding the electoral model of the Federal Republic of Somalia through the dedicated efforts of the National Consultative Council (NCC), a body that brings together the leaders of the Federal Government and Federal Member States. This accord is now presented for thorough evaluation and potential endorsement by the Federal Parliament. The key focal points of the electoral propositions and delineations set forth by this political accord can be succinctly outlined as follows:

• Electoral Framework: The proposed electoral system for Somalia is designed to be efficaciously implemented throughout the nation, elucidating the mechanisms of election administration across all tiers of government.
• Presidential System: A fundamental transition is proposed by the agreement, shifting away from the parliamentary structure that has been in place since the country's independence in 1960. The envisaged shift involves adopting a presidential system of government, featuring both a President and a Vice President of the Republic.
• Universal Suffrage: Central to the agreement is the intention to conduct a nationwide election based on the principle of "one-person-one-vote" rather than the system of indirect elections that has been in place in Somalia since 1969.
• Municipality Council Elections: The seats within municipality councils will be open to competition from all registered political organizations.
• National Political Parties: Following the municipality elections, the two political entities securing the highest vote counts will assume the exclusive status of being recognized as the national political parties.
• Federal and Regional-Level Elections: The contestation of seats within the Federal and Regional Institutions shall be the exclusive purview of the aforementioned two national political parties. This contestation will occur under the framework of proportional representation and a closed-list system.
• Single Constituencies: The election of contested seats will occur within a singular constituency, streamlining the electoral process.
• Women’s Representation: This is yet to be agreed upon and will be considered in a distinct document dedicated to addressing the critical matter of women's representation through a designated quota.
• Electoral Administration: To ensure the impartial and effective conduct of diverse elections across the nation, an Independent National Elections and Boundaries entity will be established. This autonomous body will bear the responsibility of both orchestrating and executing elections.

Outlook and Next Steps

Nevertheless, there remain unresolved and contentious issues that demand consensus among the various stakeholders. These unresolved matters, which are now awaiting deliberation in the Federal Parliament, constitute a subset of the numerous divisive topics that have eluded resolution for the past eleven years. This prolonged impasse can be attributed primarily to the lack of collaboration between the Federal Government and the Member States, coupled with a lack of synergy between the two houses of the Federal Parliament.

In contrast to its predecessors, the present government enjoys more favorable support from both the Federal Parliament and the Member States, with the exception of Puntland, whose President continuously refused to take part in the NCC meetings. This improved relationship significantly enhances the prospects of successfully concluding and adopting the constitution. By prioritizing the finalization of the constitutional review and initiating discussions on the contentious issues early in its tenure, this government has kindled optimism that the constitution could ultimately be ratified within its current mandate, slated to conclude in April 2026. This ambitious aspiration is indeed attainable provided that all tiers of government sustain their commitment to productive dialogue and resolution of the remaining contentious matters with equal alacrity. Additionally, the Federal Parliament must maintain its methodical pace in the incremental adoption of the constitutional review process, ensuring a chapter-by-chapter approach, as currently proposed by the constitutional amendment adoption procedure prepared by the OC and presented to both houses of the Federal Parliament.

Continued harmonious interactions among all stakeholders further elevate the likelihood of achieving the constitution's adoption before the current mandate concludes.

Continued harmonious interactions among all stakeholders further elevate the likelihood of achieving the constitution's adoption before the current mandate concludes, allowing ample time for preparations for the forthcoming national elections. For this, it would be crucial to get the Puntland President’s approval and support to the NCC agreements already concluded and to take part in future NCC proceedings. Given Puntland’s importance as the oldest Federal Member State, its participation and support for the review process will be essential for attaining the constitutionally required majority for the adoption of the constitutional amendment document in the Federal Parliament, and thus to achieve the long-awaited conclusion of the Somali constitutional process.

Hon. Mohammad Sheikh Osman Jawari is Former Speaker of the House of the People. He was Chairperson of the Committee of Experts in Somalia’s constitution-making process.

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Suggested citation: Mohammad Osman Jawari, ‘On the Finalization of the Constitutional Review Process in Somalia', ConstitutionNet, International IDEA, 29 September 2023, https://constitutionnet.org/news/finalization-constitutional-review-process-somalia

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