The Somali Constitutional Review Process. Taking Stock.
In August 2012, the Somali Provisional Constitution was adopted by a National Constituent Assembly. This adoption followed a politically very contentious and controversial process, the so called “Roadmap Process”, which, upon significant pressure by the international donor community engaged in Somalia, managed to bring a group of national and regional stakeholders together, to negotiate a new constitution and thereby end the years of transitional governance in Somalia from 2000 to 2012 (named after the Transitional National Charter of 2000 and the Transitional Federal Charter of 2004).
Due to the fact that despite earlier commitments and constitutional requirements, a public referendum to finally approve the constitutional text could not be organized, it was agreed that the new constitution would only be provisionally adopted by a National Constituent Assembly consisting of 825 representatives from all sections of the Somali society (clan representatives, business-community, civil society representatives, elders, women, youth, etc.). As the drafters of the Somali Provisional Constitution could not agree on a number of crucial state-building questions and thus considered their work as incomplete, they provided for a comprehensive constitutional review process. This review process, as outlined in Chapter 15 of the Somali Provisional Constitution, was tied to the first term of the Somali Federal Parliament, and scheduled to end after four years, i.e. in August 2016. In this time, 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 have reviewed the Somali Provisional Constitution, adopted changes with a two-thirds majority of both Houses and presented the reviewed constitutional text to the Somali people for final approval in a public referendum.
However, these timelines could not be kept. After a long inception phase, the constitutionally mandated review institutions of OC and ICRIC were only set up in December 2012 and June 2014 respectively. Only in March 2015 a Memorandum of Understanding was signed between the OC, ICRIC and the Ministry of Constitutional Affairs, defining roles and responsibilities in the constitutional review process. And only by November 2015, OC and ICRIC agreed on a joint approach of preparing different options for the amendment of the constitution so as to facilitate subsequent political consultations and negotiations. Despite all challenges, in the end, OC and ICRIC managed to review the Somali Provisional Constitution comprehensively. Language and technical issues such as cross-reference errors or mistakes in numbering were rectified and the Somali language improved significantly. Substantively, three different options were prepared, mainly concerning different models and ideas for the set-up of the Somali Federal Government under the new federal state structure provided for by the Somali Provisional Constitution.
The first (and preferred) option of OC and ICRIC suggested abolishing the Upper House currently provided for by the Somali Provisional Constitution and to provide for a unicameral Federal Parliament instead. The idea of such a unicameral Federal Parliament would be to elect the members using the Federal Member States as constituencies and thereby have the members represent the Somali people within each Federal Member State. With respect to the executive branch of government this first option proposed abolishing the office of the Prime Minister and instead to provide for a federal executive with a President elected by Parliament and acting as Head of State and Head of Government. Just as in South Africa’s hybrid system of government, the President and his or her cabinet would be accountable to parliament and require its confidence. The preferred model for the judicial system under this option was to establish a unified court system administered by the Federal Government exclusively and thus not to decentralize the judiciary.
The first alternative to the preferred option, i.e. option two, suggested staying as close as possible to the current system provided for by the Somali Provisional Constitution. Thus, maintaining the bicameral Federal Parliament but to establish the Upper House as a Council of Elders comprising of members indirectly elected by the Federal Member State Legislative Assemblies (instead of having its members directly elected by the people of each Federal Member State as currently provided by the Somali Provisional Constitution). For the executive branch option two proposed to emphasize the features of a parliamentary system with a Prime Minister heading the Council of Ministers requiring the confidence of the House of the People and a President elected by both Houses mainly exercising ceremonial powers of a Head of State. With respect to the judiciary, option two proposed to establish an integrated court system with Federal Government and Federal Member State establishing their own courts, which apply all sets of laws, i.e. Federal Government laws and Federal Member State laws.
The third and least preferred option suggested to establish a bicameral Federal Parliament, but to have the second House established on an ad-hoc basis as a House of Federal Member State Delegates. This House of Federal Member State Delegates would only convene when the need arises as per its constitutional mandate, e.g. when electing the President, appointing judges or members of Independent Commissions or amending the constitution, but would not be involved in the law making process of Federal Government laws. Furthermore, the third option proposed the establishment of a fully-fledged presidential system. Thus, the President would act as Head of State and as Head of Government directly elected by (and thus accountable to) the Somali people, and the President and the Council of Ministers would not require the approval or confidence of parliament. On the judiciary, the third option proposed the establishment of a dual (separated) court system with Federal Government courts adjudicating Federal Government laws and Federal Member State courts adjudicating Federal Member State laws only.
These options were presented to the House of the People of the Somali Federal Parliament in July 2016, which, in the absence of the establishment of all Federal Member States, according to Article 138 (2) of the Somali Provisional Constitution, constituted the Somali Federal Parliament as a unicameral federal legislature. However, in light of the imminent election, the time was considered to be too short to properly discuss and take these options forward, and so by a resolution adopted on 16 August 2016, the House of the People of the Somali Federal Parliament resolved to defer the review report presented by OC and ICRIC to the second term of the Somali Federal Parliament.
The delays in the work of the OC and ICRIC came as no surprise given the difficulties and challenges the Somali state-building process was still facing. By the time of the adoption of the Somali Provisional Constitution only one out of what ended up to be five Federal Member States existed, i.e. Puntland, and the state formation as well as the democratization process were hindered by constant threats still posed by armed opposition groups or the terrorist group of Al-Shabab. The last Federal Member State of Hir-Shabelle was not formed until October 2016, through the very contentious merger of Hiiraan and Middle Shabelle regions. Thus, how to comply with the constitutional requirement of consulting with Federal Member States as long as not all Federal Member States were formed, remained a highly contentious issue throughout the constitutional review process as in consideration of Somalia’s very complex clan system, consulting with one regional administration but not with others, would have had serious political repercussions.
Consequently, whenever the Somali Federal Government moved the process forward, it was criticized for not taking the new federal state structure into full account. Especially the Federal Member State of Puntland, which was very actively involved in the 2011-2012 Roadmap Process, criticized the constitutional review process heavily. The main reason for this criticism was the fact that the government of Puntland was not formally consulted and their representatives included when the Somali Federal Government and Parliament set up the constitutionally mandated review institutions of OC and ICRIC. The government of Puntland apparently also questioned the Somali Federal Government and Parliament’s commitment towards the establishment of a federal state structure as such, which, however, is and always has been a precondition for Puntland’s involvement in the Somali state-building process.
In any case, in the end, the main tasks of a comprehensive constitutional review have not been addressed. Public consultations have not been held, political consultations and negotiations between Federal Government and Federal Member State Governments/Regional Interim Administrations or among Federal Member State Governments/Regional Interim Administrations were not conducted and the Somali Federal Parliament did not conclude the work of OC and ICRIC by taking a plenary decision on the preferred model but instead deferred their review report to the second term of the Somali Federal Parliament.
Nevertheless, the developments during the first phase of the constitutional review process, of course, should at least inform the approach and tasks of the second phase. It seems prudent to build on this technical work and focus activities now on the unaddressed tasks of public engagement and political dialogue and consultations.
It should be noted though, that failure to adhere to the constitutional timelines for the constitutional review process has some significant legal implications. The issue at hand is the wording of Articles 133 and 134 of the Somali Provisional Constitution, tying the term of OC and ICRIC to the first term of the Somali Federal Parliament. The term of OC and ICRIC thus expired in August 2016. Following the logic of working with the terms of the Somali Federal Parliament, Article 137 seems applicable now, regulating the continuation of the constitutional review during the second term of the Somali Federal Parliament. Accordingly, the Somali Federal Parliament would set up a Constitutional Review Commission, to propose constitutional amendments no later than six months before the expiry of the second term of the Somali Federal Parliament, after consultations with the Somali public, Federal Member States and the Chief Justice of the Constitutional Court.
However, the wording of Article 137 suggests that the Constitutional Review Commission to be set up during the second term would review the constitution as approved in a public referendum, which was to be organized before the end of the first term of Somali Federal Parliament (reference to Article 136). Again, with this referendum not being held, the whole constitutional review structure currently provided for in the Somali Provisional Constitution is very much in question. A different interpretation might be possible, for example concluding that the current constitutional review structure is maintained and allowed to continue working since the review of the constitution has not been properly concluded by a public referendum organized before the end of the first term of the Somali Federal Parliament.
A simple, yet constitutional way out of this reading allowing for different interpretations could be to follow the regulations for the ordinary constitutional amendment process as set out in Article 132 of the Somali Provisional Constitution. Accordingly, after the expiry of the first term of the Somali Federal Parliament, the Somali Federal Government, a Federal Member State, any member of the Somali Federal Parliament or a petition signed by at least 40.000 citizens may propose amendments to the constitution. Upon approval of either of its two Houses, the Somali Federal Parliament would set up a joint committee of the Houses, which, after consultations with the Somali public and the Federal Member State Legislatures, would prepare a draft constitutional amendment for the approval of both Houses by a 2/3 majority vote each. Such approved amendment would still need to be subjected to a public referendum (see Article 132 (10)).
All these options have their validity and implied advantages and disadvantages. OC and ICRIC have been trained and would be in a position to just continue their work. This, however, would only partly apply to the OC as not all members of the OC have been reelected as members of parliament and the OC would need to include members of the newly established Upper House as well. Thus, the OC would need to be reconstituted anyway. On the other hand, this constitutional review structure faced tremendous challenges and a new structure and approach might actually be preferable. Going via ordinary constitutional amendment procedures as provided for by Article 132 would mean to end a formal constitutional review process, which might not adequately address unresolved and crucial state-building questions.
In any case, this is a decision political actors in Somalia need to take. Given the prolonged lack of an effective central government and the state of political fragmentation Somalia has been facing for years and is still facing in many parts of the country, arguably only a common approach supported by all political stakeholders of the Somali Federal Government and Federal Member State/Regional Interim Administrations institutions can take the constitutional review process and thus the Somali state-building process forward. It is for these government institutions to demonstrate to the Somali people that they are capable of governing the country and lead it out of the period of government collapse and turmoil that has haunted Somalia for decades. In this respect it will be crucial to recognize and accommodate the recent conclusion of the state formation process, i.e. the establishment of a total of five Federal Member States in the constitutional review structure.
For this purpose an approach to the constitutional review process is needed which is agreed upon and supported by the political leadership of the Somali Federal Government and Parliament as well as all the leaders of the Federal Member States/Regional Interim Administrations (Galmudug, Hirshabelle, Jubaland, Puntland, South West State) and provides for an enabling environment for these bodies and institutions mandated to contribute to this process. Given the tremendous complexity and sensitiveness of the Somali constitutional review process, all these bodies and institutions will need to complement and support rather than compete with each other. Once this common approach is developed among the Somali Federal Government and Federal Member State/Regional Interim Administrations institutions, involvement of other important actors as well as of the Somali people should be sought in a political and public outreach campaign.
Jan Amilcar Schmidt, MLE, is a German lawyer and Research Fellow at the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg, Germany. After more than eight years of working experience in Somalia, he currently serves as Country Manager for Somalia.
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