Vision 2016 in Autumn 2015: What can still be achieved in the Somali peace- and state-building process?
It is the autumn of 2015, and Somalia and the Somali peace- and state-building process are at a critical juncture. Timelines for the constitutional review and implementation process, as provided by the Somali Provisional Constitution are running out. At stake are the accomplishments of years of constitution making, as a tool of rebuilding the Somali state through consensus building on national governance structures among otherwise much-divided political elites. Failure to comply with the strict constitutional timelines, unless subjected to constitutional amendment, will result in an unconstitutional status quo. This would indeed endanger any progress of rebuilding the Somali state in line with the principles of constitutionalism and the rule of law.
After the overthrow of the Siad Barre regime by various clan-based militias in 1990/1991, central government structures collapsed and Somalia disintegrated into a position of statelessness and political anarchy. The different clan militias could not agree on forming a joint government and thus competing militias and local warlords took control over different parts of the country. In the otherwise homogenous Somali society, these clans are, in basic terms, family lineages divided into various sub-clans serving as political alliances in times of warfare and conflict. After years of artificial suppression, they have again become the decisive factor of political identity and affiliation in Somalia.
It was not until 2000 that a Transitional National Government was established in accordance with the Transitional National Charter following the Arta Peace Conference. The Transitional National Parliament, charged with electing the President and a Council of Ministers was appointed by clan elders on the basis of the so-called 4.5 clan representation formula granting the four main clan families (Darod, Digil & Mirifle, Dir and Hawyie) an equal share of seats and all the minority clans half of the number of the larger clan families. However, the Transitional National Government remained quite ineffective and, in 2004, the Transitional National Charter was replaced by the new Transitional Federal Charter. This created a Transitional Federal Government with a clear mandate to federalize the country and prepare for a federal constitution within two and a half years. After numerous extensions to this timeline, eight years later the National Constituent Assembly provisionally adopted a new Constitution – under heavy political pressure by the international community. The Provisional Constitution - while provisionally in force - formally still requires endorsement in a public referendum to be organized within the first term of the newly established Federal Parliament.
Adopted in August 2012, the Provisional Constitution sets constitutional time frames for a number of constitutional implementation tasks to be fulfilled during the first four-year term of the Federal Parliament, concluding in August 2016. Federal institutions, such as a number of Independent Commissions or the Constitutional Court are to be established and substantial state-building processes are to be initiated, conducted and finalized, such as the federalization and democratization processes, or identifying and implementing an electoral system for Somalia. The outcomes of these processes are to be reflected in a constitutional review process, which is expected to result in a final constitutional text to be presented to the Somali people in a public referendum.
In order to guide the Somali state-building process and to meet the constitutional time frames, the Federal Government, the international donor community engaged in Somalia and the UN developed the Vision 2016 Somali Compact. Adopted in September 2013, the Compact outlines the following five peace- and state building goals: Inclusive Politics; Security; Justice; Economic Foundations; and Revenue and Services. The priorities (and prerequisites) of Inclusive Politics were identified in (1) the clarification of the relation between the Federal Government and existing and emerging regional administrations, i.e. federalization; (2) the finalization and adoption of the Constitution; and (3) preparation and holding of credible elections.
However, one major problem of the Vision 2016 Compact seems to be the fact that this document was never presented to and endorsed by the Federal Parliament. This is even more striking considering the central role of the Parliament in most processes outlined in the Compact that are to be reflected in a revised constitution and implementation legislation to be adopted by Parliament.
Federalization - Conclusion of the State Formation Process
One of the major aspects of the Somali state-building process is the envisaged federalization process. Already the Transitional Federal Charter of 2004 mandated the Transitional Federal Government to federalize the country. The political driving force behind this demand was the autonomous region of Puntland established in 1998. Unlike the breakaway Republic of Somaliland in the northwest, Puntland declared its willingness to remain an integral part of the Somali Republic, should there be a federal system accommodating Puntland as a member state. However, the Transitional Federal Government never really addressed the federalization process and no additional member states were formed by 2012.
The Provisional Constitution now envisages a Federal Member State formation process that is based on the pre-1991 administrative regions. At least two of these former administrative regions would have to merge (voluntarily!) to become a Federal Member State. Yet, it remains unclear how the regions are supposed to make such voluntary decisions. Further complicating the situation are the nature and settlement patterns of the Somali clans, which led to competing clan and sub-clan interests in large parts of the southern and central parts of the country.
In 2013, the Federal Government presented a federalization strategy that envisaged the establishment of local and regional administrations, as a first step; which will then be allowed to take the voluntary regional decision to form a Federal Member State as a second step. However, this strategy was never implemented. In fact, the Federal Government’s inaction on the federalization process apparently created a great deal of mistrust in both the Government and its commitment to establishing a federal state. Thus, instead, regional initiatives flourished promoting the establishment of Federal Member States at the regional level - often based on partisan and sometimes contradictory sub-clan interests that caused even further conflict.
Nevertheless, with the support of such external actors as Ethiopia, Kenya, the UN and the Intergovernmental Authority on Development (IGAD) in Eastern Africa, these regional initiatives succeeded even though sometimes at the expense of certain communities that felt misrepresented and left out. In addition to the existing autonomous region of Puntland, a number of Interim Administrations were established recently: Jubbaland Interim Administration in 2014; the South-West State Interim Administration in early 2015; and most recently the Galmudug Interim Administration in the summer of 2015. Apart from the five regions of the self-declared independent Republic of Somaliland, thus, the only pre-1991 regions that have not yet merged to form a Federal Member State are the regions Hiiraan, Middle Shabelle and Benadir.
While the Federal Government became a negotiating partner and thus ultimately an integral part of these regionally (and internationally) driven state formation processes, it is still the House of the People of the Federal Parliament that is authorized to determine statehood under the Provisional Constitution. This decision is to be informed by the recommendations of an independent Boundaries and Federation Commission that, however, is yet to become operational. While it is fair to say that the federalization process is well underway, it remains to be seen how viable the interim arrangements will be. The Boundaries and Federation Commission could still play an important role in initiating local and regional reconciliation between majority and minority communities. It could also promote mechanisms to advance regional representation and inclusivity and could sort out certain border issues, such as the division of the Mudug region currently held partly by Puntland and partly by the Galmudug Interim Administration. Ultimately, however, the finalization of the Somali federalization process will depend on a decision of the House of the People and the willingness of the MPs to endorse the current and emerging Regional Interim Administrations. For this to happen, the Boundaries and Federation Commission could be used as a platform and vehicle to promote and facilitate dialogue between the Federal Government and the Parliament as well as the already established and emerging Regional Interim Administrations/Federal Member States. Additionally, regular coordination platforms and mechanisms such as the Inter-State Commission and the meetings of executive heads of the Federal Government and Federal Member States would need to be established. In the absence of the Inter-State Commission, which per definition would require the existence of established Federal Member States, the Federal Government envisages the establishment of an Inter-Regional Consultative Forum that, in theory, should facilitate dialogue. At this stage, the focus should be on opening as many communication channels as possible to facilitate dialogue between the center and the regions to further reconciliation in the regions, to broaden representativeness and inclusivity in the Regional Interim Administrations/Federal Member State governments, and to facilitate parliamentary decision-making that should ultimately all inform the constitutional review process.
Most importantly, the representation of Federal Member States in the future Upper House of the Federal Parliament will require constitutional revision. The current representation formula provided in Article 72 is incompatible with the design of emerging Regional Interim Administrations/Federal Member States. This will become a major challenge for the establishment of this important second House of Parliament even once all Federal Member States are duly established. Such other federalization issues, as the division of powers and competences as well as resource and revenue sharing would also need to be addressed. However, at this point it seems very unlikely that these issues can be resolved before the summer of 2016, according to the current time frames.
Democratization – The Need to come up with an Electoral System
Compared to the federalization process, the preparation for the 2016 elections seems much less advanced. When lack of progress in this respect became obvious in 2014, the Federal Government and the Parliament established two Ad-Hoc Committees, one to prepare the law establishing the National Independent Electoral Commission and one to prepare the law on political parties and political parties’ registration. The law establishing the National Independent Electoral Commission was adopted and the Commission was appointed in July 2015, while the law on political parties and political parties’ registration is yet to be adopted. Quite obviously, however, certain prerequisites for holding one-person-one-vote elections are still lacking - rendering the organization and conduct of elections in 2016 highly unlikely. The biggest challenge remains the absence of a national identification system allowing for the proper registration of the electorate. Other major challenges include the lack of competent national personnel to run the electoral process, the tense security situation and lack of control over large parts of the country thus making it difficult to get qualified international personnel on the ground to assist the process.
Considering these challenges, in September 2015, the Federal Government and its international partners launched a Consultative Forum comprising of representatives of the Federal Government, Federal Parliament, Regional Interim Administrations/Federal Member States, and civil society to develop possible solutions for elections in 2016. Such elections are of major importance for the Somali democratization process, as the current Federal Parliament was not elected by the Somali people but appointed by traditional clan leaders, similarly to the two previous Parliaments in 2000 and 2004. However, a one-person-one-vote election in 2016 again seems to be off the table for now. Apparently, there is no clear commitment from relevant actors to work on putting all technical prerequisites in place or to discuss potential election models, such as indirect elections through electoral assemblies, or staggered elections etc. Instead, already numerous alternative selection processes have been suggested in the public debate in the hope of more transparent, inclusive and ultimately more legitimate processes. However, to identify such processes would require fully committed discussions and negotiations among the main political stakeholders. Anything less, indeed would bear the risk of disrupting the current power balance and thus might cause more harm than gain.
Also, the question would be how to get such an alternative selection process through Parliament, basically asking MPs to end their own term and risk another selection process with uncertain outcomes. As the political dialogue was initiated only recently, it is likely to entail such time pressure that would make it indeed unlikely that a more credible and legitimate selection process could be designed and operationalized on time.
However, these challenges only apply for the election of MPs, while elections due within Parliament could be easily organized. The Provisional Constitution envisages the election of the President by the Parliament and there would actually be no reason not to hold such elections when the current four-year term expires. The newly elected President would then subsequently appoint a new Prime Minister and Council of Ministers subject to the approval of Parliament. While this suggestion might not be ideal, it would still provide for a new mandate for the top leadership of the federal institutions and thus might create a sense of a fresh start in 2016.
In the long run, it would be much advisable to set up the electoral system for MPs in a way that requires no further parliamentary decisions and actions, as MPs’ personal interests in upholding the status quo, i.e. their parliamentary seat, seems to be the main reason blocking progress on electoral reform. To truly advance the Somali democratization process, the Somali people, however, will need to be given the chance to have a say in electing their representatives in Parliament – putting an end to the prevailing top-down selection process by political elites.
On-going Constitutional Review
The Provisional Constitution provides for an extensive constitutional review process, largely due to the time pressure on the drafters who needed to get out a text - in the hope that it could still be improved at a later stage. A further challenge has been that certain fundamental decisions could not be taken at the time, as the Somali state building process was simply not advanced enough to develop definite and viable solutions. The development of a truly federal constitution illustrates the fundamental challenges the process has faced. Among other criteria, it required defining the division of powers and competences between the different levels of government. However, at the time of drafting in 2012, this decision could not be taken, as only one Federal Member State existed in the perception of the drafters, i.e. Puntland State. Therefore, the issue was not regulated but was instead subjected to further negotiations between the Federal Government and Federal Member States. However, it is still difficult to take a final decision on this matter today, as not all Federal Member States have been established. Even once established, the new Federal Member States are not likely to be in a position to enter into meaningful negotiations about their powers and competences any time soon. Similar challenges continue to hinder the development of a proper electoral system, which requires a clear idea of what mechanisms and procedures are to be provided considering the lack of knowledge and expertise as well as the still tense security situation in large parts of the country. Again, the drafters of the Provisional Constitution were not comfortable with providing for the necessary guidance in the constitution but instead mandated the Federal Parliament to come up with the necessary legislation.
Making progress even more difficult, the Provisional Constitution provides for a rather complicated constitutional review process. This review system requires the instructions of the parliamentary Constitutional Review and Implementation Oversight Committee (Oversight Committee) to be presented to an Independent Constitutional Review and Implementation Commission (ICRIC). As instructed, the ICRIC would prepare draft constitutional amendments, which then would be presented by the Oversight Committee to the Federal Parliament for adoption by a 2/3 majority. Ultimately, the reviewed constitution would be presented to the Somali people in a public referendum.
This overly complicated review system is still not operational. While the Oversight Committee and ICRIC are in place, they lack the necessary resources and financial support to fully commence their work. Probably, the lack of idea and vision among key actors of the federal institutions, the international donor community engaged in Somalia and the UN, on how to make this review system operational vis-a-vis conflicting interests of the Federal Government and Regional Interim Administration/Federal Member States is the reason why this process could not fully unfold until today.
However, as the Provisional Constitution stands, a public referendum on the constitution (either as amended or, if no amendment will be adopted, as it is) is to be conducted before the end of the first term of the Federal Parliament. As explained above, it remains unlikely that Somalia will be able to organize and conduct elections in 2016. The same holds true for a public referendum. Thus, in order to avoid a situation of unconstitutionality, a constitutional amendment repealing the requirement to adopt the constitution in a public referendum or the postponement of such a referendum seems inevitable.
Today, probably the biggest obstacle to operationalizing the constitutional review system is the lack of vision due to the high number of inadequately addressed fundamental questions of the Somali state-building process in the current constitutional text. Indeed, as explained in the context of the federalization and the democratization processes, many of these crucial questions are difficult to answer, as they require due consultations and political negotiations between political actors and stakeholders, such as the Federal Government, Federal Member States and local and regional political forces. For that, Federal Member States should be established and in a position to negotiate. In the end, it will also be crucial that the Somali people take their decision on how they want to be governed in the future. This requires outreach and public consultations, which have not been conducted adequately so far, and would require time and a politically more settled and secured environment. However, a constitution only reflects the actual political arrangements between the main political forces in a given country. In the Somali context, it should not be assumed that political actors will follow the letter of the constitution, but instead the constitutional text should explicitly articulate what the political agreements and settlements are at the time.
A good example for better accommodating political realities in the constitutional text instead of the other way around would be the unworkable representation formula for the Upper House. This formula provided prematurely without having a clear picture of the actual design of Federal Member States turns out to be unworkable as these Federal Member States emerge. Clearly, one would need to evaluate more carefully what level of detail can be provided in the constitution so as not to jeopardize its political practicality and ultimately its effectiveness as a tool for the Somali state-building process in the long run. Understanding a constitution in this way, would pose no urgency to finalize the constitutional document at this stage. Instead, one should consider the Somali peace- and state-building process as an on-going exercise and give the constitutional process sufficient time to translate actual results of this process into the final constitutional text.
The Somali peace- and state-building process and thus the constitutional review processes are likely to continue far beyond 2016. However, a lot could still be achieved, if the focus shifts away from the idea of having a thoroughly reviewed constitution in 2016 towards more realistic and achievable goals and targets. Even such smaller steps require a lot of commitment and work by the Somali stakeholders. Instead of confronting these stakeholders with unrealistic hopes and expectations, for the sake of progress they should receive full support in focusing now on what realistically can still be achieved by 2016.
As it stands, concluding the state formation and the determination of an electoral system would be a priority. Greater attention should also be given to actual implementation guidelines and transitional provisions as well as restructuring the constitutional review system. This revised constitutional review system would need to work out procedures that ensure broader public outreach activities and initiates a truly nation-wide dialogue on the Somali constitution. In the end, the constitution will need to serve all Somali people and not only the rather small political elite currently represented in the Federal Government and Parliament.
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.