Somalia's democracy deferred: Proposed electoral models to complete the transition

Following the decision to defer direct popular elections to 2020, Somali political leaders have been unsuccessfully mulling a substitute electoral model. The focus on the electoral process has slowed down the broader constitutional reform process. The Somali transition appears set to continue, again. 

Background

The 2012 Provisional Constitution of Somalia replaced the 2004 Transitional Federal Charter. Although it was initially intended to mark the end of political and constitutional transition, political realities necessitated the continuation of the transition to allow the resolution of contentious issues through political agreements in a constitutional review process. The transition is planned to end in August 2016, where a new and improved constitution would have been adopted, regional member states established, and direct elections held for members of the House of the People and the Upper House. Nevertheless, none of these milestones seem achievable before August 2016. While the House of the People is considering several reform proposals from the parliamentary Constitutional Oversight Committee, and the Independent Constitutional Implementation and Review Commission, it is unlikely that enough consensus will emerge to lead to its adoption in 2016.

The establishment of regional member states may not also be completed before August 2016. While most of the pre-1991 regions have been combined to establish four regional-states-in-waiting (Puntland, Jubaland, Galmudgu, and South West), pending their formal parliamentary approval upon the recommendations of the Boundaries and Federation Commission, the last three regions (Hiiraan, Middle Shebela and Benadir – where Mogadishu is located) are yet to be merged. A renewed effort to merge Hiiraan and Middle Sebelle is currently ongoing after its initial failure in December 2016. The fate of Benadir is unclear as it cannot qualify as a federal member state by itself as the Provisional Constitution requires that at least two pre-1991 regions must voluntarily merge to qualify as a new federal member state. Accordingly, a constitutional amendment may be necessary before Benadir could be recognized as a regional state on its own – as has been proposed in the latest constitutional review document submitted by the Oversight Committee. Similarly, Galmudug as it stands now is composed of one and one-half pre-1991 regions and may therefore need some constitutional tweaking before it could qualify as a full member state.

The third major milestone – the focus of this particular piece – is the organization of direct popular elections in August 2016, which has been deferred to 2020. The political leaders announced that their terms will end as provided for in the Provisional Constitution – August 2016 for the Parliament and September 2016 for the President. Consequently, Somali political actors have been engaged in a process to garner consensus, which has so far proved elusive, on a substitute electoral model to elect members of parliament.  

The Editor of ConstitutionNet, Dr Adem Kassie Abebe, spoke to Abdi Hosh, former Minister of Constitutional Affairs and Reconciliation, and current member of the Somali House of the People, about the process of selecting a substitute electoral model, and other underlying issues. This piece is based on Hosh’s insights and comments.  

Inclusivity of the ongoing process to select an electoral model

There is consensus among Somali political actors that direct popular election is not feasible at this stage. Al-Shabaab continues to control large swathes of South Central Somalia and to strike several targets, including in the heart of Mogadishu. Additionally, for the first time, in March 2016, Al-Shabaab made incursions into Puntland, a hitherto peaceful region which has largely escaped the civil and religious conflict that has gripped the rest of the country since 1991. Security also seems to have worsened in the last couple of months.

Crucially, beyond the security challenges, the political, legal and institutional infrastructure necessary for a credible election are utterly absent. The National Independent Electoral Commission was only established at the end of 2015 and lacks the necessary capacity and resources to organize a country-wide election. It also suffers from legitimacy problems as regional governments continue to complain of non-participation and lack of transparency in the process of appointment of its members. Even if the Commission had the capacity and resources, a national census would have to be conducted, electoral constituencies delimited, and voters registered, all before August 2016 – monumental tasks for a fledgling country in transition. 

Accordingly, the Federal Government and Parliament agreed in July 2015 that conditions will not allow direct elections and set out to usher in a process to select alternative electoral models. The Guiding Principles presented and endorsed at the High-Level Partnership Forum at the end of July 2016, require that any process must ensure “enhanced legitimacy” through a broader, more inclusive process that is representative of Somali society, including women and minority groups.

With a view to spearhead this process, political leaders and international partners launched a National Consultative Forum in September 2015. The Forum is composed of more than 70 members: the President of the Republic, the Prime Minister and other representatives of the Federal Government, the Federal Parliament, heads of interim regional administrations and other regional representatives, and representatives of national and regional civil society groups.  International partners participate as observers.

Initially, the manner in which the Forum was conceived was questionable. It was a top-down process led and executed by the Federal Government. Representatives of the international community, largely failing to understand the complexities of the Somali political process, were eager to “tick the boxes” by claiming that an agreement on the electoral model has been agreed – the term of Nicolas Kay, UN Secretary General representative, was ending and could have been eager to leave a legacy. A similar rush was witnessed in relation to the efforts of the international community to “midwife” the state formation process between Hiiraan and Middle Shebelle, which ultimately collapsed when the clan representatives withdrew. The state formation process has resumed. Nevertheless, on March 16, 2016, in a meeting with United Nations officials in Beletweyne, Hiiraan, the council of elders of the region made it clear that their priority was not state formation but a reconciliation process among the diverse clans of the region. They requested the deferral of the state formation process and the provision of assistance for a sustained reconciliation initiative.

The involvement and role of regional leaders, whose legitimacy was questionable, was also concerning. The leaders did not enjoy the support of a significant segment of the population and clans in the various interim regions.  Moreover, because the process of selection of the representatives of civil society groups was not outlined, they were largely handpicked by the Federal Government. Active civil society groups, including those representing women, were never properly consulted – leading at best to a “sham” representation of civil society. A recent gathering of women activists expressed significant discontent with how the process is unfolding. The activists demanded a firmer guarantee, unlike the 2012 process where a promise was made in the Garowe Principles but never complied with. They insist that nothing less than a guaranteed quota through legislation would assure them of a fair political representation in the 2016 transition.

The participation of the public

Considering that the new models would restrict the voices of voters, the Forum committed to organizing a series of public consultations. A Technical Support Committee and a Task Force – both under the auspices of the Ministry of Interior and Federal Affairs – were tasked with organizing public consultations. The two organized a few consultation forums in some cities in November, and with the Somali diaspora in Nairobi, Kenya in December 2015. The Forum announced that the consultations constituted unprecedented and exemplary exercises of participatory politics in Somalia. Nevertheless, the government could have conducted a wider public consultation (rather than just a four-day rushed process) as the government enjoyed political mandate since September 2012. Furthermore, the format of the “consultations” was skewed. Participants in the consultations were essentially asked to choose from a predetermined list of models.  

Consensus remains slippery

Following the consultations, the Forum reported that there was no single electoral option that is preferred by all Somalis and the ultimate model should combine all relevant elements. Nevertheless, two models were prominent: a clan-based 4.5 formula (one each for each of the four major clans, and a half for the smaller clans), and a district-based electoral system.

The clan-based 4.5 Formula is supported by representatives of Galmudug and South West administrations, partly because a district-based representation will lead to fewer representatives for these regions. The President appears to support this formula, as it may allow him to influence the relatively few number of electors. A district-based system will decentralize the election process and make it hard for any single actor to influence the selection process. 

The clan-based 4.5 Formula will essentially be the same as the process in 2011. Nevertheless, the number of clan representatives selecting parliamentary representatives is expected to be more dispersed than it was in 2011 where a few clan leaders essentially handpicked the representatives.  According to the latest proposal, members of parliament will be elected by electoral colleges composed of 30 members for each parliamentary seat (a total of 8250 electors, compared to the 135 clan leaders in 2012). The electors will be selected by the clan leaders and must include representatives of a wide variety of groups including women, the youth, business communities, civil society, religious leaders, and prominent clan members.

Jubaland and Puntland favor a district-based model as they have comparably higher number of districts. Nevertheless, a large part of Jubaland is still under Al-Shabaab control – which makes district-based election practically impossible. Moreover, the Jubaland Regional Assembly itself is organized along clan lines. Jubaland may therefore be seeking to use the process to obtain concessions, for instance, in relation to direct access to donor resources.  

Similarly, the Puntland Assembly is based on clan systems. Nevertheless, the President of Puntland seems to have his back against the wall as the district-based model enjoys support among the people and local politicians.  The president of Puntland has made several public promises in the region and among the Puntland diaspora that he will not accept any other formula. He also appears to be under internal pressure among his local parliament who have threatened to impeach him. There is little hope that the president will make a U-turn.  

After initial efforts to agree on a model failed in December 2015, a new deadline was set for January 2016. Nevertheless, a meeting of the Forum concluded without consensus. Consequently, the Federal President, after convening the National Leadership Forum, which is composed of the federal and regional leaders, issued a “compromise” model to compose both the House of the People and the Upper House of Parliament. The Upper House – which was not specifically mentioned in the September and October meetings of the Forum – was brought to the fold in December 2015 seemingly as a compromise tool in anticipation of potential disagreement.   

Accordingly, the clan-based 4.5 Formula will be the basis of composing the House of the People. The Upper House will have members representing the interim regional governments – eight members for each regional government, and another six to be divided between Somaliland and Puntland, considering their political and institutional maturity. A minimum quota of 30% in both houses is reserved for women.   

It is not clear how representatives of Somaliland will be selected – Somaliland has not officially participated in Somalia political processes since 2000. Moreover, the people of Benadir, which includes Mogadishu, will not have representation in the Upper House. The granting of extra seats to Puntland and Somaliland potentially contravenes the Constitution and could lead to resistance from the other regions. In fact, Puntland has claimed that the increased number of representation is a form of dishonest inducement. The proposal may therefore face resistance essentially from all sides. Indeed, since its announcement, there has not been any significant movement towards agreement.  

Another hurdle awaits: The need for parliamentary approval

Initial conceptions of the Forum did not anticipate any direct role for the Federal Parliament. The Forum also operated largely in the form of behind-the-scene negotiations between the Federal President and the leaders of the interim regional administrations. Nevertheless, parliament in January 2016 adopted a resolution recognizing the Forum on the condition that the outcome will be based on national consensus. In another resolution adopted in March 2016, Parliament requested the Federal Government to present the agreed proposal on electoral models to Parliament by 15 April. Parliamentary approval will be key to the legality and legitimacy of the process.

At this stage, it is not clear whether an ordinary legislation will suffice to authorize the electoral model, assuming there would be consensus. Considering that the requirement that parliamentarians be directly elected is provided for in the Provisional Constitution, a constitutional amendment may be necessary. An amendment would require at least 184 votes, which is a formidable feat to achieve, considering that a new selection process would threaten the seats of the current members, a significant number of whom are chronically unemployable.    

Uncertainty continues as consensus politics falters

While the dispute has largely been presented as a difference on the basis of the electoral model, the underlying sticky point appears to be the lack of trust in terms of the control and supervision of the electoral process. The controversy surrounding the appointment of members of the Electoral Commission is a reflection of this underlying dispute over supervision. A proposal to empower an independent vetting commission, rather than the Electoral Commission, in verifying the clan leaders who will select the electors appears to address this concern.  

In addition to the difficulty of attaining consensus within the Forum, there is a real risk that Parliament may reject the proposal. Even if the proposal is accepted by Parliament, a big if, the earliest possible time would be late April. It is uncertain how the selection process could be organized before August – considering that Ramadan will be in June/July, there will essentially be two months within which the implementation has to be undertaken. Some form of extension is therefore almost certain.

The extension of the parliamentary term does not necessarily require the extension of the president’s term as the vote for the president could go ahead with the existing parliament in September 2016. Nevertheless, the president is likely to resist any extension of parliamentary terms without a corresponding extension of his term. Indeed, the President has indicated that his fate and the future of members of parliament are intertwined. 

The focus on the electoral process has slowed down the broader constitutional reform process. The formation of a new parliament is likely to disrupt the constitutional reform process and push the deadline for the adoption of the final constitution. As in 2012, the Somali transition may have to be continued.   

The political situation in Somalia is as unpredictable as ever. The possibility of consensus on the electoral model is tricky. Another delay, and another popular frustration at the slow pace of change, seems unavoidable. The high level of insecurity hovers over the success of even the most carefully thought-out designs.