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Draft Constitution will deepen Somalia’s crisis | By Uluso

September 15, 2010: While the persistent political squabbles among the leaders of the Transitional Federal Government of Somalia (TFG) are the hallmark of dysfunctional and corrupt regime,  the ongoing dispute over the Draft  Constitution deserves  attention, scrutiny and comment. The externally-driven Constitution-Making Process will deepen the Somali crisis, will perpetuate the chaos and massacre in South Central Somalia and finally will obliterate Somalia as a country.

This controversy is continuation of the political crisis that started when former Deputy Prime Minister and Minister of Finance, Sharif Hassan Sheikh Adan, successfully usurped the position of Parliamentary Speaker. At that time, I contended that the purpose of the move might be related to future passage of questionable legislative acts like the Constitution in dispute and other legal acts that would compromise Somalia’s sovereignty, reconciliation and stability. It looks as the situation evolves to the predicted direction.

In response to the dismal failure of the 2008 Djibouti Somali Peace Initiative conjured by the former Special Representative of Secretary General (SRSG) of the United Nations, Mr. Ahmedou Ould Abdalla, the International Community considered three options. The first option was an extension of term in office of the current TFG leaders after August 2011. The second option was an implementation of a “Constitution-Based Initiative” in order to reform the parliament by decreasing the number from 550 to less than 300 MPs. The smaller Parliament will elect new President and then will vote for new Cabinet. The third option was the “constructive disengagement” put forward by Bronwyn Bruton of Council on Foreign Relations. Apparently, the International Community has settled on the second option without substantial changes in the problems underlying the Somali crisis.

Consequently, the International Community has taken the following steps:

  • The UNDP Somalia Constitution-Making Support Project (SCMSP) through the Independent Federal Commission (IFCC), Parliamentary Committee on Commission (PCC), and the Ministry of Constitution and Federal Affairs has drafted in three months the Constitution published in August 2010. UNDP has divided Somalia into three parts: Somaliland, Puntland and South Central. The practical implementation of the Constitution will be limited to South Central of Somalia.
  • The United Nations replaced the Special Representative of the Secretary General (SRSG), Ahmedou Ould Abdalla of Mauritania with Ambassador Augustine P. Mahiga, of the Republic of Tanzania, who will lead the implementation of the process of the “Constitution-based Initiative.”
  • The International Community has imposed agreement between the TFG and Ahlu Sunna Wal Jama (ASWJ), which has created deep division within TFG and ASWJ groups and triggered torturous Cabinet reshuffle. Ministers from Union Islamic Courts or pro Arabs were purged from Cabinet and replaced with pro Ethiopian Ministers.
  • The Partner of the International Community in both the 2008 Djibouti Peace Process and the Addis Agreement between TFG and ASWJ, Sharif Hassan Sh. Adan, has assumed the Parliamentary Speaker position for the implementation of the “Constitution-based Initiative.”

Now, the focus is on the immediate completion of the new Constitution despite the fact that the process lacks integrity, identifiable and credible stakeholders, checks and balances structures. In this juncture, Somalis lack the freedom, capacity, serenity, structure and environment for negotiating a constitution among them, all conditions crucial for legitimate constitution-making process.

Nevertheless, in the light of the following events, there will be Constitution by the end of February 2011. Indeed, a Joint Statement issued by AMISOM, IGAD and UN on September 13, 2010 on the dispute between the President and the Prime Minister categorically states, “it is important that the present arrangement among the TFI be maintained. The end of the transition period will give Somalis the opportunity to determine a new political dispensation, but there is much work to be done before then. There is no time to waste.” The plan for the implementation of process is incorporated in the latest report of the Secretary-General to the Security Council. Puntland and Somaliland ruled by elected authorities are not subjects to or stakeholders of the new Constitution. The Constitution’s symbolic launch in Garowe, Puntland is simply for political game and short term interest.

  1. On June 21,  2010, UNDP published a Request For Proposal (RFP) for  a contract for the implementation of  UNDP Somalia Constitution- Making Support Project (SCMSP). The services in the contract include the “development of public consultation systems and IT systems to track and summarize public inputs and submissions and surveyors/opinions , polls and , target groups.” The contractor is independent from the TFG.
  2. On August 10, 2010, the Prime Minister wrote a letter to United Nations Electoral Assistance Division in New York for assistance so that the Constitution like TFG is internationally UN recognized. On the same date and for the same purpose, the Speaker wrote identical letter to the Manager of UNDP Governance Program in Nairobi. Both leaders confirmed their prior participation in TFG-Electoral Needs Assessment Mission Retreat at Safari Park, Nairobi, Kenya from 29-30 July, 2010.

Three issues were raised in both letters. First, the Speaker and the Prime Minister stated, “ we do not desire another transitional government,” and asked,  “to move to  a permanent constitutional and democratic government.” Second, both leaders said that “in the light of the security and political situation  in Somalia, it would be impracticable to hold constitutional referendum in the current predicament.” Third, “the new constitution will be ratified by a Constitutional Assembly consisting of the  members of the parliament and an equal number of  representatives from the civil society.” The civil society representatives will be selected by TFG and Parliament leaders. The draft constitution will be therefore ratified through the same process through which it was generated.

  1. On August 16, 2010 UNDP and the National Democratic Institute (NDI) wrote a joint letter to the Speaker and the Prime Minister in which both Organizations invited members of what they called “Joint Committee of TFG and TFP” for a workshop on “Transitional legislative agenda and Transitional Plan” in Nairobi between 23-26 August, 2010.

Selected Members of the Cabinet were Madobe Nuunow, Ali Jama Jangeli, Mustafa Ali Dhuhulow, Bur’i Mohamed Hamza, Mohamed Abdi Hayir and Abdullahi Sheikh Ali.

Selected Members of the Parliament were Ali Ismail Abdigir, Mowlid Ma’ane, Abdulkadir Sheikh Mohamed Nur, Mahad Abdalla Awad,  Ahmed Omar Gagale, Mohamed Awale.

No representative was invited from the President’s Office.

The  main purpose of the UNDP-NDI sponsored workshop was to plot the timeline of Transitional Legislative Agenda (TLA), in other words the passage of the Constitution and the sequence of steps the Speaker, the Prime Minister and their allies will fulfill.

  1. End of August, 2010, UNDP published a position of Project Management Consultant of the SCMSP, whose responsibilities included coordination and monitoring of policy and legislative task force within the Prime Minister’s Office; policy formulation and prioritization of TFG’s transitional policies; Cabinet Secretariat to coordinate and monitor Administrative Actions of the Cabinet; and Technical Support to the TFP Secretariat at the Office of the Speaker.

From the Somali side, the International Community has engaged as usual Sharif Hassan Sh Aden, the Speaker of Parliament, as its partner in this new endeavor. The train of the “Constitution-Based Initiative” has left station and the President has limited options. The dominance of the International community in the governance of Somalia has permitted the disregard of all constitutional, legal and administrative procedures as well as disregard of internal accountability and transparency requirements.  Some have suggested that the Attorney General should investigate if the Speaker and the PM committed abuse of power within the framework of the Transitional Federal Charter, which has less value than the paper it is written on.

On the Constitution-Making Process

The Constitution-Making process is externally driven by the SCMSP under UNDP. A consortium  of UK, Norway, Denmark, Sweden, US and European Commission funded the project. The process has defied UN guidance, fundamental rules, practices and experiences of Constitution Making processes. Studies conducted in war torn countries, have suggested that such process should be undertaken long after peace agreements were signed and satisfactorily implemented. More than half of the Somali population are internally displaced people, refugees languishing in neighboring countries and polarized Diaspora. Puntland, Somaliland and almost all South Central Somalia are not participants, parties or subjects to the Constitution-Making process.

Members of the drafting Team-c0nsultants and TFG representatives- are all on the UNDP compensation. The exclusion of the President from the process is sufficient proof to the level of hypocrisy and disregard to truth, transparency, and participation.  It is absolutely incomprehensible to say that in Somalia email messages are substitute of social participation, education, transparency, accountability and of building common aspirations for the future in Constitution-Making process.

Another misleading argument is that the Federal system is mandated by the Transitional Federal Charter (TFC). The failure of TFG in extending its power over Somalia abrogates the validity and acceptability of TFC now used to uproot the Benadir people. If independent Somali voice has any significance, Somali Intellectuals brought together by UNDP have overwhelmingly rejected the imposition of federal system on Somalia and suggested instead a democratic and decentralized good governance system. The drafting Team/Commission failed to provide one plausible reason for the adoption of federal system. Rather the Team/Commission adopted the insidious line of dividing the Somalis on the basis of language like “Maxaa tiri, Maay-arti and Arabic.” Many communities like natives of Eastern Region, Somaliland, Mudug, Hiran, Middle and Lower Shabelle, Benadir and others speak different dialectics. The language of Somalis is Somali like the English is the language of all English speaking people.

If for some reason, there is determined need to adopt a federal system, Somalis must reach freely, thoughtfully and deliberatively that conclusion. Presently, the Federal system is Ethiopia’s leverage against the long term socio-economic and political stability and development of Somalia.

One point that is worthwhile mentioning here is the status of Puntland and Somaliland. These two Administrations are mutually exclusive or overlapping which means if Somaliland’s claim is accepted , there will be no Puntland. If Puntland’s claim is accepted, there will be no Somaliland. In addition, a new Regional State called Sol, Sanag and Aynabo (SSA) has born between Somaliland and Puntland. Other Regional States are GalMudug, Himan and Heeb, Hiiranland, Central State, Waadi and Waax while others may follow soon. Nine of the ten regions in South Central Somalia are under the control of the internationally proscribed terrorist Organization Al Shabab. The remaining eight regions are in Somaliland and Puntland.

There are a host of pre-constitutional issues that Somalis must discuss and agree upon. The appropriate system of governance is one of those difficult issues Somali stakeholders have to negotiate in order to exit from the current catastrophe. The Draft Constitution is deviation from the right path for national reconciliation and state building and one more hurdle to Somalia’s revival.

Mr. Mohamud M Uluso


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