Somalia: Incomplete Constitution Draft

Background

The first constitution was the independence constitution, drafted in 1960 and was approved in a referendum in 1961 that established a parliamentary system of government. Following a coup d’état led by Major General Mohamed Siad Barre in 1969, this constitution and its institutions were suspended until 1979 when a new constitution was drafted and approved via referendum. The Constitution of 1979 established a presidential system of government. However, power remained concentrated in Barre’s military regime—amidst growing clan-based internal conflict— until an internal Somali rebellion overthrew the regime in 1991.

Consequently, Somalia went into decades of civil war, piracy and extremist insurgence which alarmed the international community to intervene in order to improve security for the maritime and pacify the country.

In June 2006, Somalia parliament has adopted the legal framework to lead the constitution making process. The Somali Constitutional Commission Act was formed which established a fifteen-member FCC in line with the 4.5 formula, and elaborated principles to guide the work of the commission. The Act required the Commission to take account of the charter, the principles of Islam, democracy and social justice, and to ensure a process that (1) promotes public participation, transparency and accountability to the people; (2) accommodates the diversity of Somalis and their opinions; and (3) promotes stability, peace and reconstruction.

In August 2006, the FCC held its first meeting, where it adopted its rules of procedure, outlined a civic education programme and a roadmap for producing the draft constitution. The body also renamed itself as the ‘Independent’ Federal Constitutional Commission (IFCC). As the FCC was only set up in mid-2006, and considering the two and half year mandate provided for in the TFC, the expectation, in theory, was that the FCC was to finish its work by December 2008.

However, due to increased insecurity and violence, the Commission never effectively commenced its work until March 2010. In August 2010, it released a preliminary Consultation draft Constitution (CDC). The document outlined options and ideas to stimulate public debate and inputs to inform a more concrete draft. Between 2010 and 2011, the Commission engaged in civic education and public consultation on the draft document in fraught conditions of insecurity and political instability. This meant limited outreach and further delays. Thus, it was not until August 2012 that a new constitution was ‘provisionally’ adopted by a National Constituent Assembly (NCA) comprising 825 members representing different sections of the Somali society, in lieu of a referendum, which was anticipated but was impractical under the security circumstances. Its adoption marked the ‘end’ of an eight-year transition defined by political turmoil, warfare, instability and delays to the constitution making process.

The ‘Provisional’, rather than ‘Permanent’, character of the 2012 Constitution must be understood in two senses: Firstly, the TFC required the final constitution to be adopted through a referendum but security conditions made this impossible. It was thus agreed that the document only be ‘provisionally’ approved through the NCA until security conditions allow the possibility of a nationwide constitutional referendum to take place.: Secondly, because stakeholders could not agree on all key state-building questions, members of the IFCC considered their work as unfinished, and therefore provided for a second transitional period during which these unresolved issues should be addressed before finally submitting the document to a referendum. Key amongst the issues in question were the:

  • Structure of the federal legislature, executive and the judiciary;
  • Division of power and resources between the federal and the state governments; and
  • The status of Mogadishu.
  • Now most of the work concerning the constitution is done, and it is still incomplete and not yet approved by the parliament; the repeated political crisis related to the incomplete constitution has become a new reality. Most of Somalia’s political and legal analysts believe that the current political crisis remedy is in the completing of the constitution and parliament approval for it or the establishment of constitutional court that takes care of the completion of the constitution draft and that has the highest powers to control the political crisis of the country.

I. Adam

HANAHR.NET